exv10w7





Exhibit 10.7




EXECUTION VERSIOIN


 








$3,500,000,000




LOAN AGREEMENT




by and among




RESIDENTIAL FUNDING COMPANY, LLC,

as Borrower,




GMAC MORTGAGE, LLC,

as Borrower,




RESIDENTIAL CAPITAL, LLC AND CERTAIN OTHER

AFFILIATES OF THE BORROWERS PARTY HERETO,

as Guarantors,




Certain Affiliates of the Borrowers and the Guarantors

party hereto as Obligors,




GMAC LLC,




as Initial Lender and as Lender Agent




and




Certain Other Financial Institutions and Persons from

time to time party hereto as Lenders




Dated as of June 4, 2008




 





 









 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS
	 	 	1	 
	Section 1.01. Definitions; Construction
	 	 	1	 
	Section 1.02. Accounting Matters
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II COMMITMENTS, LOANS, BORROWING, PREPAYMENT
	 	 	2	 
	Section 2.01. Commitments and Loans
	 	 	2	 
	Section 2.02. Note
	 	 	3	 
	Section 2.03. Borrowing Procedures
	 	 	4	 
	Section 2.04. Borrowing Base
	 	 	5	 
	Section 2.05. Interest
	 	 	6	 
	Section 2.06. Fees
	 	 	6	 
	Section 2.07. Alternate Rate of Interest; Increased Costs
	 	 	6	 
	Section 2.08. Mandatory Repayment of Loans
	 	 	8	 
	Section 2.09. Optional Prepayment
	 	 	9	 
	Section 2.10. Termination of Commitments and Reduction of
Aggregate Commitment Amount
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III PAYMENTS; COMPUTATIONS; TAXES; EXPENSES
	 	 	10	 
	Section 3.01. Payments and Computations, Etc
	 	 	10	 
	Section 3.02. Taxes
	 	 	12	 
	Section 3.03. Fees and Expenses
	 	 	15	 
	Section 3.04. Setoff
	 	 	15	 
	 
	 	 	 	 
	ARTICLE IV ACCOUNTS AND COLLECTIONS
	 	 	15	 
	Section 4.01. Concentration Accounts
	 	 	15	 
	Section 4.02. Sales Proceeds Accounts
	 	 	15	 
	Section 4.03. Collections Deposited to Collection Accounts
	 	 	16	 
	Section 4.04. Withdrawals from Designated Accounts; Account Notices
	 	 	16	 
	Section 4.05. Cash and Cash Equivalents
	 	 	16	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT
	 	 	16	 
	Section 5.01. Conditions Precedent
	 	 	17	 
	Section 5.02. Further Conditions Precedent
	 	 	17	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	17	 






-i-









 





Table
of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 6.01. Representations and Warranties of the Borrowers
	 	 	17	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	21	 
	Section 7.01. Affirmative Covenants of the Obligors
	 	 	21	 
	Section 7.02. Negative Covenants of the Obligors
	 	 	25	 
	Section 7.03. Notice of Certain Occurrences
	 	 	28	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	31	 
	Section 8.01. Events of Default
	 	 	31	 
	Section 8.02. Remedies
	 	 	33	 
	 
	 	 	 	 
	ARTICLE IX ASSIGNMENT, PARTICIPATION
	 	 	34	 
	Section 9.01. Assignments
	 	 	34	 
	Section 9.02. Evidence of Assignment
	 	 	36	 
	Section 9.03. Rights of Assignee, Evidence of Assignment
	 	 	36	 
	Section 9.04. Participations
	 	 	36	 
	 
	 	 	 	 
	ARTICLE X INDEMNIFICATION
	 	 	37	 
	Section 10.01. Indemnities by the Borrowers
	 	 	37	 
	Section 10.02. General Provisions
	 	 	38	 
	 
	 	 	 	 
	ARTICLE XI GUARANTEE
	 	 	39	 
	Section 11.01. Unconditional Guarantee
	 	 	39	 
	Section 11.02. Nature of Guarantee
	 	 	39	 
	Section 11.03. Certain Agreements; Waivers of Certain Notices
	 	 	40	 
	Section 11.04. Waiver of Subrogation
	 	 	40	 
	Section 11.05. Taxes
	 	 	40	 
	Section 11.06. Payments
	 	 	41	 
	Section 11.07. Severability of Article XI
	 	 	41	 
	Section 11.08. Acceleration of Guarantee
	 	 	41	 
	Section 11.09. Election of Remedies
	 	 	42	 
	Section 11.10. Benefit to Guarantor
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XII LENDER AGENT
	 	 	42	 
	Section 12.01. Appointment and Authorization
	 	 	42	 
	Section 12.02. Delegation of Duties
	 	 	43	 






-ii-









 






Table
of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 12.03. Liability of Lender Agent
	 	 	43	 
	Section 12.04. Reliance by Lender Agent
	 	 	43	 
	Section 12.05. Notice of Default
	 	 	43	 
	Section 12.06. Credit Decision
	 	 	44	 
	Section 12.07. Indemnification
	 	 	44	 
	Section 12.08. Lender Agent in Individual Capacity
	 	 	44	 
	Section 12.09. Successor Lender Agent
	 	 	45	 
	Section 12.10. Funding Reliance
	 	 	45	 
	Section 12.11. Security Matters; Release of Collateral
	 	 	46	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS
	 	 	47	 
	Section 13.01. Amendments, Etc
	 	 	47	 
	Section 13.02. Notices, Etc
	 	 	48	 
	Section 13.03. No Waiver; Remedies
	 	 	48	 
	Section 13.04. Binding Effect; Assignability
	 	 	48	 
	Section 13.05. GOVERNING LAW; SUBMISSION TO JURISDICTION
	 	 	48	 
	Section 13.06. Entire Agreement
	 	 	49	 
	Section 13.07. Acknowledgment
	 	 	49	 
	Section 13.08. Captions and Cross References
	 	 	49	 
	Section 13.09. Execution in Counterpart; Effectiveness
	 	 	49	 
	Section 13.10. Confidentiality
	 	 	49	 
	Section 13.11. Survival
	 	 	50	 
	Section 13.12. Joint and Several Liability of Borrowers
	 	 	50	 
	Section 13.13. Obligors Bound by Intercreditor Agreement
	 	 	52	 
	Section 13.14. Third-Party Beneficiaries
	 	 	52	 
	Section 13.15. First Priority Collateral Agent; Capacity under this
Agreement and Protections Afforded
	 	 	52	 







-iii-









 








	 	 	 
	Schedules
	 	 
	Schedule 1.01

	 	Definitions
	Schedule 2.04

	 	Collateral Value Calculations
	Schedule 5.01

	 	Conditions Precedent to the Initial Loan
	Schedule 5.02

	 	Conditions Precedent to each Loan
	Schedule 7.01(g)

	 	GMAC LLC Required Reports
	Schedule 7.01(m)

	 	Master Custodial Agreement
	Schedule 7.01(t)

	 	Bilateral Facilities
	Schedule 8.01(m)

	 	Post-Closing Requirements
	Schedule 13.02

	 	Notices
	 
	 	 
	Exhibits
	 	 
	Exhibit A

	 	Eligibility Requirements
	Exhibit B

	 	[Reserved]
	Exhibit C

	 	Initial Permitted Funding Indebtedness
	Exhibit 2.02(a)(i)

	 	Form of Revolving Note
	Exhibit 2.02(a)(ii)

	 	Form of Term Note
	Exhibit 2.03(a)

	 	Form of Borrower Funding Request
	Exhibit 2.03(b)

	 	Form of Interim Borrowing Base Report
	Exhibit 2.04(a)

	 	Form of Collateral Value Report
	Exhibit 2.04(b)

	 	Form of Collateral Value Certificate
	Exhibit 2.08(b)

	 	Form of Repayment Notice
	Exhibit 2.09(a)

	 	Form of Prepayment Notice
	Exhibit 7.01

	 	Form of Compliance Certificate
	Exhibit 7.01(s)

	 	Form of Joinder
	Exhibit 9.01

	 	Form of Assignment and Acceptance






-iv-









 





     This LOAN AGREEMENT (as amended or supplemented from time to time, this “Agreement”)
dated as of June 4, 2008, is by and among Residential Funding Company, LLC, a Delaware limited
liability company (“RFC”), GMAC Mortgage, LLC, a Delaware limited liability company
(“GMAC Mortgage”, and together with RFC, each a “Borrower” and collectively, the
“Borrowers”), Residential Capital, LLC and the other Affiliates of the Borrowers party
hereto as Guarantors (each, a “Guarantor”), the various other parties signatory hereto as
obligors (the “Obligors”), GMAC LLC, a Delaware limited liability company (the “Initial
Lender”), the financial institutions and other Persons that are or may from time to time become
parties hereto as Lenders (together with the Initial Lender and their respective successors and
assigns, each a “Lender” and collectively, the “Lenders”), and GMAC LLC, a Delaware
limited liability company, as agent for the Lenders (in such capacity together with its successors
and assigns in such capacity, the “Lender Agent”) and Wells Fargo Bank, N.A., solely with
respect to Section 12.11(b) and in its capacity as First Priority Collateral Agent.



BACKGROUND




     The Borrowers desire to obtain Commitments from the Lenders so that the Lenders will from time
to time and subject to the terms hereof make revolving Loans to the Borrowers, which Loans are
secured by the Collateral.



     The Guarantors have entered into this Agreement and have agreed to provide guarantees of the
Obligations hereunder and to pledge Collateral to secure such guarantees.



     The Lenders have agreed to acquire certain outstanding term loans made to ResCap pursuant to
that certain Term Loan Facility dated as of July 28, 2005 (the “Term Loan Agreement”) among
ResCap, the lenders thereunder, Citibank, N.A., as syndication agent, the documentation agents
thereunder, and JPMorgan Chase Bank, N.A., as administrative agent, from the lenders thereunder.



     The Borrowers, the Guarantors and the Lenders have agreed to convert the existing term loans
referred to immediately above to Loans subject to the terms of this Agreement.



     The Lenders are willing, on the terms and subject to the conditions hereafter set forth, to
extend the Commitments and make Revolving Loans to the Borrowers.



     NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
and intending to be legally bound, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING MATTERS




     Section 1.01. Definitions; Construction.



          (a) Capitalized terms used herein and not
otherwise defined herein shall have the meanings specified in Schedule 1.01.




 









 








          (b) All terms used in Article 9 of the UCC, and not specifically defined herein, are used
herein as defined in such Article 9.




          (c) Unless otherwise stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word “from” means “from and including” and the words
“to” and “until” each means “to but excluding”.




          (d) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined.




          (e) Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.




          (f) The words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same meaning and
effect as the word “shall”.




          (g) Unless the context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person’s successors and assigns,
provided that such successors and assigns are not prohibited by the Facility Documents,
(iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all
references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement, and (v) the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.




     Section 1.02. Accounting Matters. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP applied in a manner consistent with that used in preparing the
financial statements described in Section 7.01(f) hereof.



ARTICLE II




COMMITMENTS, LOANS, BORROWING, PREPAYMENT




     Section 2.01. Commitments and Loans.



          (a) On the terms and subject to the conditions
set forth in this Agreement, each of the Lenders severally agrees, from time to time on any
Business Day occurring on or after Closing Date but prior to the Commitment Termination Date, to
make loans (relative to each Lender, its “Revolving Loans”) to the Borrowers in an aggregate
amount equal to such Lender’s Pro Rata Share of the aggregate amount of the Revolving Loans
requested by the




Loan Agreement




2









 







Borrowers to be made on such Business Day. The Lenders shall distribute the proceeds of such
Revolving Loan to the Borrowers no later than 2:00 p.m. (New York City time) on the related Funding
Date in accordance with Section 2.03.




          (b) On the terms and subject to the conditions hereof, the Borrowers may from time to time
borrow, prepay and reborrow Revolving Loans. No Lender shall be required to make any Revolving
Loan if, after giving effect thereto, (i) the Outstanding Aggregate Loan Amount would exceed the
Available Amount or (ii) such Lender’s Outstanding Lender Loan Amount would exceed such Lender’s
Pro Rata Share of the Available Amount.




          (c) Pursuant to the Term Loan Assignment, each Lender shall have acquired Existing Term Loans
in an aggregate principal amount equal to such Lender’s Pro Rata Share of the Term Loan Initial
Balance, which Existing Term Loans shall on the date hereof be deemed for all purposes to be term
loans extended to the Borrowers hereunder (the “Term Loans”). Once repaid or prepaid
hereunder, the Term Loans may not be reborrowed.




          (d) Upon the effectiveness of the transfer of the Existing Term Loans and to the extent such
Existing Term Loans are deemed converted to Term Loans hereunder, the parties hereto acknowledge
and agree that ResCap shall have no obligations to the Lenders with respect to the Term Loan
Agreement or the Term Loan Assignment.




     Section 2.02. Note.



          (a) The Loans made by each Lender shall be evidenced by a
promissory note executed by each Borrower substantially in the form of Exhibit 2.02(a)(i)
hereto (a “Revolving Note”), in the case of a Revolving Loan, or Exhibit
2.02(a)(ii) hereto (a “Term Note”), in the case of a Term Loan (each a “Note”),
in each case dated the date hereof, payable to the applicable Lender in a maximum principal amount
equal to such Lender’s Pro Rata Share of the Aggregate Commitment Amount. The Borrowers hereby
irrevocably authorize each Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender’s Note (or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding principal amount of, and
the interest rate and Interest Period applicable to the Loans evidenced thereby. Such notations
shall, to the extent not inconsistent with notations made by the Lender Agent in the Register, be
conclusive and binding on each Obligor absent manifest error; provided that, the failure of
any Lender to make any such notations shall not limit or otherwise affect any Obligations of any
Obligor.




          (b) The Borrowers hereby designate the Lender Agent to serve as the Borrowers’ agent, solely
for the purpose of this clause, to maintain a register (the “Register”) on which the Lender
Agent will record each Lender’s Commitments, the Loans (and interest due thereon) made by each
Lender and each repayment in respect of the principal amount of the Loans, annexed to which the
Lender Agent shall retain a copy of each Assignment and Acceptance, and each participation (as
described in Section 9.04), delivered to the Lender Agent pursuant to Article IX.
Failure to make any recordation, or any error in such recordation, shall not affect any Obligor’s
Obligations. The entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Obligors, the Lender Agent and the other Lender Parties shall treat each
Person in whose name a Loan is registered as the owner thereof




Loan Agreement




3









 







for the purposes of all Facility Documents, notwithstanding notice or any provision herein to
the contrary. Any assignment or transfer of a Commitment or the Loans made pursuant hereto shall
be registered in the Register only upon delivery to the Lender Agent of an Assignment and
Acceptance that has been executed by the requisite parties pursuant to Article IX. Upon
its receipt of a duly completed Assignment and Acceptance, the Lender Agent shall record the
information contained therein in the Register. No assignment or transfer of a Lender’s Commitment
or Revolving Loans, including those transfers or assignments to an Affiliate, shall be effective
unless such assignment or transfer shall have been recorded in the Register by the Lender Agent as
provided in this Section.




          (c) The Register shall be available for inspection by the Borrowers or any Lender (but in each
case only as to its relevant portion of the Register), at any reasonable time and from time to time
upon reasonable prior notice.




     Section 2.03. Borrowing Procedures.



          (a) By delivering a Borrower Funding Request to
the Lender Agent on or before 11:00 a.m. (New York City time) on any Business Day, the Borrowers
may from time to time irrevocably request, on the Initial Funding Date (in the case of the initial
Revolving Loan) or one Business Day prior to any subsequent Funding Date (in the case of subsequent
Revolving Loans), that Revolving Loans be made in an aggregate minimum amount of $50,000,000 and an
integral multiple of $1,000,000 (or the remaining unused portion of the Revolving Loans available
to be advanced hereunder); provided that (i) the amount of the initial Revolving Loans
requested pursuant to the initial Borrower Funding Request shall be not be less than $100,000,000,
(ii) after the Initial Funding Date, the aggregate amount of Revolving Loans requested for Funding
Dates in any period of ten (10) consecutive Business Days may not exceed $500,000,000 and (iii) the
amount of Revolving Loans requested pursuant to any Borrower Funding Request (including the initial
Borrower Funding Request) shall not, immediately after giving effect to the advance of such
Revolving Loans, be greater than the difference between (A) the Available Amount minus (B)
the Outstanding Aggregate Loan Amount. On the terms and subject to the conditions of this
Agreement, the Revolving Loans to be made with respect to any Borrower Funding Request shall be
made on the Business Day specified in such Borrower Funding Request. On or before 1:00 p.m., New
York City time, on such Business Day, each Lender shall deposit with the Lender Agent same day
funds in an amount equal to such Lender’s Pro Rata Share of the requested Revolving Loans. Such
deposit will be made to an account which the Lender Agent shall specify from time to time by notice
to the Lenders. To the extent funds are received from the Lenders, the Lender Agent shall make
such funds available to the Borrowers by wire transfer to the accounts the Borrowers shall have
specified in their Borrower Funding Request. No Lender’s obligation to make any Revolving Loan
shall be affected by any other Lender’s failure to make any Revolving Loan.




          (b) [Reserved].




          (c) On or prior to the first Business Day preceding any Funding Date (if the related Funding
Date is after the Monthly Settlement Date), and as a condition to the advance of any Revolving
Loans relating to such Funding Date, the Borrowers shall deliver to the Lender Agent an Interim
Borrowing Base Report.




Loan Agreement




4









 








          (d) By delivering a Borrower Funding Request, the Borrowers represent and warrant to each
Lender that, after giving effect to the making of the requested Revolving Loans thereunder, all
conditions precedent to such Revolving Loan specified in Section 5.02 have been satisfied
and all statements in clauses (b), (c), (d), (e) and (f) of
Schedule 5.02 are true and correct.




     Section 2.04. Borrowing Base.



          (a) On or prior to the Initial Funding Date, the
Borrowers shall deliver to the Lender Agent and the Valuation Agent the Initial Collateral Value
Report and the other components of the initial Monthly Collateral Report.




          (b) After the Initial Funding Date, the Borrowers shall deliver to the Lender Agent and the
Valuation Agent an updated Monthly Collateral Report no less frequently than once per calendar
month and no later than the tenth Business Day of each calendar month (commencing with June 2008).
Each Collateral Value Report and each Collateral Value Certificate delivered by the Borrowers shall
be effective (subject to Sections 2.04(c) and (d) below) until such time as the
Borrowers shall deliver a subsequent Collateral Value Report and Collateral Value Certificate. For
purposes of preparing each Collateral Value Report, the Borrowers shall calculate the Collateral
Value of the Primary Collateral described in the related Electronic File in accordance with
Schedule 2.04; provided that prior to the European Reporting Date, the Borrowers
may use reasonable estimates, based on available data (including the amount of collections on
European Reporting Assets held in European SPV Accounts) in determining the Collateral Value of
European Reporting Assets for inclusion in any Collateral Value Report.




          (c) If requested to do so by the Lender Agent, within two Business Days after receipt of a
Collateral Value Report and Collateral Value Certificate pursuant to Section 2.04(a) or
(b), as the case may be, together with the related Electronic Files, the Valuation Agent
shall, to the extent such Collateral Value calculation relies on market value rather than Carrying
Value, verify the Collateral Value for the Primary Collateral and shall notify the Lender Agent and
the Borrowers of the amount of such Collateral Value.




          (d) Within three Business Days after receipt of a Collateral Value Report and Collateral Value
Certificate pursuant to Section 2.04(a) or (b), the Lender Agent shall determine
(taking into account any information provided by the Valuation Agent pursuant to
Section 2.04(c)) the Borrowing Base and notify the Lenders and the Borrowers of such
determination. Such determination shall be effective as of the Business Day specified in such
written notice from the Lender Agent (or, if no effective date is specified in such written notice,
the next Business Day following delivery of such written notice) and such Borrowing Base shall
remain in effect (as adjusted by any European Collateral Value Adjustment) until the next
determination or redetermination of the Borrowing Base in accordance with this Agreement.




          (e) Notwithstanding anything herein the contrary, in the event that the Borrowers fail to
furnish any component of the Monthly Collateral Report, any European Collateral Value Adjustment or
any Interim Borrowing Base Report in accordance with this Section 2.04, the Lender Agent
may designate the Borrowing Base from time to time thereafter




Loan Agreement




5









 







at an amount as determined by the Lender Agent in its sole and absolute discretion until each of
the Lender Agent and the Valuation Agent shall have received all reports, certificates and files
required to be delivered by this Section 2.04, whereupon the Lender Agent shall designate a
new Borrowing Base in accordance with the general procedures outlined in this Section 2.04.




          (f) The Borrowers shall deliver Interim Borrowing Base Reports as required pursuant to
Section 2.03(c) and the Lender Agent shall calculate the Adjusted Borrowing Base with
respect to each Interim Borrowing Base Report.




          (g) To the extent that the Borrowers estimate the Collateral Value of European Reporting
Assets in any Collateral Value Report, the Borrowers shall calculate the Collateral Value of such
European Reporting Assets in accordance with Schedule 2.04 and furnish a supplemental
Collateral Value Report as adjusted to reflect such calculation (such adjustment, a “European
Collateral Value Adjustment”) within 5 Business Days of the delivery of the related Collateral
Value Report.




     Section 2.05. Interest. Interest shall accrue on each Loan for each day during a
related Interest Period at a rate equal to (a) the sum of (x) the applicable LIBOR Rate for such
Interest Period and (y) the Applicable Margin, divided by (b) 360 days. Interest shall be payable
(i) in arrears with respect to each Interest Period through the final day of each Interest Period
(regardless of whether such day is a Business Day), such amount to be payable on the first Business
Day following the end of such Interest Period, (ii) on the applicable Loan Repayment Date, (iii) on
the date of payment or prepayment, in whole or in part, of principal outstanding on any Loan with
respect to the principal amount so paid or prepaid, or (iv) on that portion of Loans the maturity
of which is accelerated pursuant to Section 8.02, immediately upon such acceleration. The
Lender Agent shall determine the LIBOR Rate for each Loan prior to the beginning of each Interest
Period, as set forth in the definition of “LIBOR Rate.” The Lender Agent shall also calculate the
amount of interest and, if applicable, any Breakage Costs or other amounts due to be paid by the
Borrowers from time to time hereunder (including in connection with any prepayment or repayment of
Loans permitted hereunder) and shall provide a written statement thereof to the Borrowers at least
two Business Days prior to the due date of such payment (or the relevant repayment or prepayment
after having received a notice thereof); provided that failure to provide such statements
on a timely basis shall not relieve the Borrowers of the obligation to pay any interest and
principal due on the applicable payment date (based upon their good faith calculation of the amount
due, such amount to be promptly reconciled after receipt of a subsequent statement from the Lender
Agent) and other such amounts hereunder promptly upon receipt of such statement.



     Section 2.06. Fees. On the Closing Date, the Borrowers, jointly and severally, shall
pay to the Lender Agent the upfront fee specified in the Fee Letter, which fee shall be fully
earned upon receipt and non refundable.



     Section 2.07. Alternate Rate of Interest; Increased Costs.



          (a) If, prior to the
commencement of any Interest Period, the Lender Agent determines (which determination shall be
conclusive absent manifest error) (i) that adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period; or (ii)




Loan Agreement




6









 







that the LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to any
Lender of making or maintaining its Loans; or (iii) that, after notice from an affected Lender, it
has become unlawful for such Lender to honor its obligation to make or maintain Loans hereunder
using the LIBOR Rate, then the Lender Agent shall give notice thereof to the Borrowers by
telephone, facsimile, or other electronic means as promptly as practicable thereafter and,
commencing with the Interest Period immediately following the Interest Period during which such
notice is provided to the Borrowers until the Lender Agent notifies the Borrowers that the
circumstances giving rise to such notice no longer exist, all Loans shall bear interest at a rate
per annum equal to the Applicable Margin plus the rate per annum that the Lender Agent determines
in its reasonable discretion adequately reflects the cost to the Lenders of making or maintaining
the Loans for such Interest Period.




          (b) The Borrowers jointly and severally agree to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by such Lender in
respect of, such Lender’s Commitments and the making, continuing, maintaining or conversion of
Loans hereunder that arise in connection with any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase in after the Closing Date of, any law or
regulation, directive, guideline, decision or request (whether or not having the force of law) of
any Governmental Authority; provided, however, that any such changes with respect
to increased capital costs and taxes shall be governed by the terms of Sections 2.07(c) and
3.02, respectively. For the purposes of this Section 2.07(b), taxes shall include
all present or future taxes, fees, levies, imposts, deductions, duties, withholdings, assessments
or other charges imposed by any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto. Each affected Lender shall promptly notify the Lender Agent and the
Borrowers in writing of the occurrence of any such event, stating the reasons therefor and the
additional amount required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable jointly and severally by the Borrowers directly
to such Lender within ten (10) days of its receipt of such notice, and such notice shall, in the
absence of manifest error, be conclusive and binding on the Borrowers.




          (c) If any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects or would affect the
amount of capital required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in good faith but in its sole and absolute discretion)
that the rate of return on its or such controlling Person’s capital as a consequence of the
Commitments or the Loans made by such Lender is reduced to a level below that which such Lender or
such controlling Person could have achieved but for the occurrence of any such circumstance, then
upon notice from time to time by such Lender to the Borrowers (with a copy to the Lender Agent),
the Borrowers shall within ten (10) days following receipt of such notice jointly and severally pay
directly to such Lender additional amounts sufficient to compensate such Lender or such controlling
Person for such reduction in rate of return. A statement of such Lender as to any such additional
amount or amounts shall, in the absence of manifest error, be conclusive and binding on the
Borrowers. In determining such amount, such Lender may use any method of averaging and attribution
that it (acting reasonably) shall deem applicable.




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          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section 2.07 shall not constitute a waiver of such Lender’s right to demand such
compensation, provided that the Borrowers shall not be required to compensate a Lender
pursuant to Sections 2.07(a), (b) or (c) for any such increased cost or
reduction incurred more than one hundred and eighty (180) days prior to the date that such Lender
demands, or notifies the Borrowers of its intention to demand, compensation therefor,
provided further that, if the circumstance giving rise to such increased cost or
reduction is retroactive, then such 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.




          (e) If any Lender requests compensation under this Section 2.07, then such Lender
will, if requested by the Borrowers, use commercially reasonable efforts to designate another
lending office for any Loan affected by such event; provided that such efforts are made on
terms that, in the reasonable judgment of such Lender, cause such Lender and its lending office(s)
to suffer no material economic, legal or regulatory disadvantage, and provided
further that nothing in this Section 2.07(e) shall affect or postpone any of the
Obligations of the Borrowers or the rights of such Lender pursuant to Sections 2.07(a),
(b), (c) or (d).




     Section 2.08. Mandatory Repayment of Loans.



          (a) The Borrowers shall jointly and
severally repay the Outstanding Aggregate Loan Amount with respect to all Loans and all other
amounts owing under this Agreement in full on the Loan Repayment Date. Loans may be prepaid in
accordance with the terms of Section 2.09 hereof and, to the extent prepaid, may be
re-borrowed hereunder in accordance with the terms hereof (including satisfaction of all conditions
precedent contained in Section 5.02).




          (b) If, on any Business Day (a “Borrowing Base Shortfall Day”), the Lender Agent
provides written notice to the Borrowers that the Lender Agent has determined in its sole
reasonable discretion that the Outstanding Aggregate Loan Amount on such day exceeds the Borrowing
Base on such day (such circumstance, a “Borrowing Base Deficiency”) by an amount equal to
or greater than $250,000, the Borrowers shall, within one (1) Business Day after the Borrowing Base
Shortfall Day, jointly and severally repay outstanding Loans in an amount equal to the amount of
the Borrowing Base Deficiency specified in the notice provided to the Borrowers by the Lender
Agent; provided, however, that to the extent a Borrowing Base Deficiency results
from a write-off of the Collateral Value of any Primary Collateral in accordance with ResCap’s
standard valuation practices applied to its assets as a whole as then in effect (such valuation
practices to be consistent with the methodology used in the preparation of ResCap’s GAAP financial
statements), the obligation of the Borrowers to repay outstanding Loans pursuant to this
Section 2.08(b) will be reduced by the Collateral Value of any Eligible Assets not
otherwise constituting Primary Collateral which the Borrower designates as Primary Collateral on
the applicable Borrowing Base Shortfall Day by written notice to the Lender Agent or in the related
Repayment Notice (any such collateral, “Substitute Collateral”).




     The Borrowers shall deliver a Repayment Notice with respect to each repayment of outstanding
Loan amounts and/or designation of Substitute Collateral made pursuant to this Section
2.08(b) by 1:00 p.m. (New York time) on the first Business Day following the related Borrowing
Base Shortfall Day.



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          (c) The Borrowers shall, on each Mandatory Repayment Date, repay outstanding Loans in an
amount equal to the sum (if greater than zero) of (i) Net Cash Proceeds in excess of Retained
Proceeds in the aggregate received by the Obligors in respect of all Collateral Dispositions;
minus (ii) the aggregate Fair Value of Reinvestment Collateral acquired with such Net Cash
Proceeds; and minus (iii) the aggregate amount of repayments made pursuant to Section
2.08(a) since the date of such Collateral Disposition.




          (d) The Borrowers shall not be required to pay any Breakage Costs incurred by the Lenders in
connection with a mandatory repayment pursuant to this Section 2.08.




          (e) Any repayments of Loans pursuant to this Section 2.08 shall be applied first to
outstanding Term Loans and second to outstanding Revolving Loans.




     Section 2.09. Optional Prepayment. The Borrowers may, at their option, prepay any
Loan advanced hereunder in full or in part (as well as all interest accrued and unpaid thereon
through the end of the related Interest Period) on the last Business Day of any Interest Period
related thereto (each an “Optional Prepayment Date”); provided that the Borrowers
deliver a Prepayment Notice to each Lender and the Lender Agent, no later than 2:00 p.m. New York
City time on a Business Day that is at least two (2) Business Days preceding the Optional
Prepayment Date; provided further that all Term Loans must be paid in full before
the Borrowers may prepay any Revolving Loans. Any such partial prepayment shall be in a minimum
principal amount of not less than $10,000,000 and in increments of $1,000,000 (or, if less, the
Outstanding Aggregate Loan Amount). Any such prepayment shall be paid over to the Lender Agent for
the account of the Lenders by the Borrowers by 2:00 p.m. (New York City time) on such Optional
Prepayment Date, and shall be in an amount equal to the sum of (a) the Loan amount being prepaid on
the date of such prepayment, plus (b) all accrued and unpaid interest on such Loan being
prepaid as of the date of such prepayment, plus (c) the allocable portion (determined by
the Lender Agent in its sole reasonable discretion) of all other amounts due from the Borrowers
hereunder. The Borrowers may make a partial or full prepayment on any date other than an Optional
Prepayment Date; provided that the Borrowers make a timely delivery of a Prepayment Notice,
and in addition to the amount required under items (a), (b), and (c) above,
the Borrowers must pay, without duplication, (x) all Breakage Costs, if any, actually incurred by
the Lenders and resulting from such prepayment and (y) all accrued and unpaid interest on such Loan
being prepaid following the prepayment. Subject to Section 5.02, in the absence of a
timely delivered Prepayment Notice, the Lenders shall automatically and without further action by
the Borrowers continue each Loan at the termination of each Interest Period for a successive
Interest Period beginning on the day immediately following the final day of the immediately
preceding Interest Period.



     Section 2.10. Termination of Commitments and Reduction of Aggregate Commitment
Amount.



          (a) Unless previously terminated, the Commitments shall terminate on the Commitment
Termination Date. If at any time the Borrowing Base is reduced to zero, then the Commitments shall
terminate on the effective date of such reduction.




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          (b) The Borrowers may elect by notice as specified in this clause (b), to reduce the
Aggregate Commitment Amount to such lower amount as the Borrowers shall specify in such notice;
provided that (i) immediately after giving effect to such reduction, the Aggregate
Commitment Amount as so reduced shall not be lower than the Outstanding Aggregate Revolving Loan
Amount, (ii) such reduction shall be in a minimum principal amount of not less than $10,000,000 and
in increments of $1,000,000 (or, if less, the remaining unused portion of the Aggregate Commitment
Amount), and (iii) all such reductions shall require at least three (3) Business Days’ prior notice
to the Lender Agent, shall be permanent, and shall take effect on a Business Day. Such reduction
in the Aggregate Commitment Amount shall take effect on the date specified in such notice, which
date shall be no earlier than three (3) Business Days from the date of actual receipt of such
notice by the Lender Agent.




          (c) In the event that the Borrowers repay outstanding Loans under Section 2.08(c) with
Net Cash Proceeds (the “Prepayment Amount”), the Commitment Amount shall be permanently
reduced to the extent the Borrower fails to reborrow such Prepayment Amount and use the proceeds of
the resulting Loans to purchase Reinvestment Collateral within 120 days of the receipt of such Net
Cash Proceeds.




ARTICLE III




PAYMENTS; COMPUTATIONS; TAXES; EXPENSES




     Section 3.01. Payments and Computations, Etc.



          (a) Unless otherwise expressly stated
herein, all amounts to be paid or deposited hereunder shall be paid or deposited in accordance with
the terms hereof no later than 1:00 p.m. (New York City time) on the day when due in lawful money
of the United States of America in same day funds (and all funds received after such time shall be
deemed to have been received on the next succeeding Business Day).




          (b) The Borrowers shall, to the extent permitted by law, jointly and severally pay interest on
all amounts (including principal, interest and fees) due but not paid on the date such payment is
due hereunder as provided herein, for the period from, and including, such due date until, but
excluding, the date paid, at the applicable Default Rate, payable on demand; provided,
however, that such interest rate shall not at any time exceed the maximum rate permitted by
applicable law.




          (c) All computations of interest and fees hereunder shall be made on the basis of a year of
360 days for the actual number of days elapsed (including the first day but excluding the last day)
occurring in the period for which payable.




          (d) Each Borrower agrees that the principal of and interest on the Loans and all other
monetary Obligations shall be the joint and several recourse obligations of the Borrowers.




          (e) Except as set forth in Section 3.02, all payments made by the Borrowers or the
other Obligors under this Agreement or any other Facility Document shall be made without set-off,
deduction or counterclaim.




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          (f) After the occurrence and during the continuance of an Event of Default, the Lender Agent
may, and upon direction from the Required Lenders, shall, apply all amounts received under the
Facility Documents (including from the proceeds of Collateral securing the Obligations) or under
applicable Requirements of Law upon receipt thereof to the Obligations as follows: (i) first, to
the payment of all Obligations in respect of fees, expense reimbursements, indemnities and other
amounts owing to the First Priority Collateral Agent and the Control Collateral Agent, (including
the out-of-pocket expenses and reasonable fees of counsel to each), (ii) second after payment in
full of the amounts specified in clause (f)(i), to the payment of all Obligations in
respect of fees, expense reimbursements, indemnities and other amounts owing to the Lender Agent,
in its capacity as the Lender Agent (including the out-of-pocket expenses and reasonable fees of
counsel to the Lender Agent), (iii) third, after payment in full in cash of the amounts specified
in clause (f)(i) and (f)(ii), to the ratable payment of all interest (including
interest accruing (or which would accrue) after the commencement of a proceeding in bankruptcy,
insolvency or similar law, whether or not permitted as a claim under such law) and fees owing under
the Facility Documents, and all costs and expenses owing to the Lender Parties pursuant to the
terms of the Facility Documents, until paid in full in cash, (iv) fourth, after payment in full in
cash of the amounts specified in clauses (f)(i) through (f)(iii), to the ratable
payment of the principal amount of the Loans then outstanding, (v) fifth, after payment in full in
cash of the amounts specified in clauses (f)(i) through (f)(iv), to the ratable
payment of all other Obligations owing to the Lender Parties, and (vi) sixth, after payment in full
in cash of the amounts specified in clauses (f)(i) through (f)(v), and following
the Termination Date, to each applicable Obligor or any other Person lawfully entitled to receive
such surplus or as may be directed by a court of competent jurisdiction.




          (g) If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary,
by application of setoff or otherwise) on account of any Loans (other than pursuant to the terms of
Sections 2.07(b), 2.07(c), 3.02, Article X or in respect of
Breakage Costs) in excess of its pro rata share of payments obtained by all Lender,
such Lender shall purchase from the other Lender such participations in Loans made by them as shall
be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably
(to the extent such other Lenders were entitled to receive a portion of such payment or recovery)
with each of them; provided that, if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and
each Lender that has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with an amount equal to
such selling Lender’s ratable share (according to the proportion of (i) the amount of such selling
Lender’s required repayment to the purchasing Lender to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each of the Obligors agrees that any Lender purchasing a
participation from another Lender pursuant to this clause (g) may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to Section 3.04)
with respect to such participation as fully as if such Lender were the direct creditor of the
Obligors in the amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law any Lender receives a secured claim in lieu of a setoff to which this Section
applies, such Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.




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     Section 3.02. Taxes.



          (a) All payments by the Borrowers or Guarantors (each a
“Credit Party”) of principal of, and interest on, the Loans and all other amounts payable
hereunder (including fees) shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, levies, imposts, deductions,
duties, withholdings, assessments or other charges of any nature whatsoever imposed by any
Governmental Authority, but excluding, (i) taxes imposed on or measured by the overall net income,
overall receipts or overall assets of any Lender by any Governmental Authority, (ii) franchise
taxes or branch profits taxes or any similar tax imposed on any Lender by the United States of
America (or any political subdivision thereof) of the jurisdiction of the Lender, as the case may
be, in which it is organized or is operating or is otherwise subject to tax as a result of any
connection unrelated to this Agreement, and (iii) any U.S. backup withholding taxes (other than due
to a change in law as provided in Section 3.02(f)) (such non-excluded taxes, fees, levies,
imposts, deductions, duties, withholdings, assessments or other charges, herein “Taxes”).
Notwithstanding the foregoing sentence, in the event that any such Taxes are required to be
deducted or withheld from any payment required to be made to any Lender as a result of Requirements
of Law, the Credit Party shall (a) promptly notify the applicable Lender, in writing, of such
requirement, (b) pay to the relevant authorities the full amount required to be deducted or
withheld (including the full amount required to be deducted or withheld from any additional amount
paid to the applicable Lender pursuant to this paragraph), and (c) jointly and severally pay to the
applicable Lender such additional amounts as may be necessary in order that the net amount received
by such Lender after such withholding or deduction shall equal the full amounts of moneys which
would have been received by such Lender in the absence of such withholding or deduction.
Notwithstanding the foregoing, the Credit Party shall not be required to increase any amounts
payable to a Lender that is a Non-U.S. Lender (as defined in Section 3.02(f)) with respect
to any Taxes (x) if and to the extent that such taxes would not have been imposed but for such
Non-U.S. Lender’s failure to provide (or the Lender Agent’s failure to provide) to the Borrower the
Internal Revenue Service Forms required to be provided to the Borrower pursuant to
Section 3.02(f) or (y) that are imposed on amounts payable to such Non-U.S. Lender
at the time such Non-U.S. Lender becomes a party hereto (or designates a new lending office) other
than due to a change in law as provided in Section 3.02(f).




          (b) In addition, the Borrowers agree to pay any current or future stamp, recording,
documentary, excise or property or similar taxes, charges or levies (including, without limitation,
mortgage recording taxes and similar fees, but excluding such amounts imposed as a result of an
assignment or the transfer of a participation) imposed by any Governmental Authority that arise
from any payment made under this Agreement or any other Facility Document, or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any other Facility
Document and the transactions contemplated thereunder (“Other Taxes”).




          (c) The Borrowers shall indemnify each Lender for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.02) paid by such Lender and any liability (including taxes,
penalties, interest and expenses) arising therefrom or with respect thereto; provided, however,
that when making a demand for indemnity payment a Lender shall provide




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12









 







each Borrower, at its address referred to in Schedule 13.02, with a certificate from the
relevant taxing authority or from a Responsible Officer of such party stating or otherwise
evidencing, in reasonable detail, that such Lender has made payment of (and the basis of
calculation for) such Taxes or Other Taxes. This indemnification shall be made within thirty (30)
days from the date a Lender provides written demand therefor, accompanied by the aforementioned
certificate.




          (d) Within thirty (30) days after the date of receiving an official receipt for any payment of
Taxes or Other Taxes contemplated by this Section 3.02, the Borrower shall furnish to the
relevant Lenders, at their addresses set forth in Schedule 13.02 (or such other address as
provided by a Lender, in the case of an assignee), appropriate evidence of payment thereof.




          (e) If a Lender shall become aware that it is entitled to receive a refund or credit (such
credit to include any increase in any foreign tax credit) as a result of Taxes (including any
penalties or interest with respect thereto) as to which it has been indemnified by a Borrower or
with respect to which a Borrower has paid additional amounts pursuant to this Section 3.02,
it shall promptly notify such Borrower of the availability of such refund or credit and shall,
within 30 days after receipt of a request by such Borrower, apply for such refund or credit at such
Borrower’s expense, and in the case of any application for such refund or credit by such Borrower,
shall, if legally able to do so, deliver to the Borrower such certificates, forms or other
documentation as may be reasonably necessary to assist such Borrower in such application. If a
Lender has determined in its sole judgment that it has received a refund or credit (such credit to
include any increase in any foreign tax credit) in respect to any Taxes as to which it has been
indemnified by the Borrowers or with respect to which a Borrower has paid additional amounts
pursuant to this Section 3.02, it shall promptly notify the Borrowers of such refund or
credit and shall, within sixty (60) days after receipt of such refund or the benefit of such credit
(such benefit to include any reduction of the Taxes for which a Lender would otherwise be liable
due to any increase in any foreign tax credit available to a Lender), repay the amount of such
refund or benefit of such credit (with respect to the credit, as determined by a Lender in its
sole, reasonable judgment) to the Borrowers (to the extent of amounts that have been paid by a
Borrower under this Section 3.02 with respect to Taxes giving rise to such refund or
credit), plus any interest received with respect thereto, net of all reasonable out-of-pocket
expenses of the Lender and without interest (other than interest actually received from the
relevant taxation authority or other Governmental Authority with respect to such refund or credit);
provided, however, that each Borrower, upon the request of the Lender, agrees to
return the amount of such refund or benefit of such credit (plus interest) to the Lender in the
event the Lender is required to repay the amount of such refund or benefit of such credit to the
relevant taxation authority or other Governmental Authority.




          (f) If a Lender is not a United States Person (within the meaning of Section 7701(a)(30) of
the Internal Revenue Code) (a “Non-U.S. Lender”), it shall, on or prior to the Closing Date
or, in the case of a Non-U.S. Lender that is an assignee, on the date of such assignment to such
Non-U.S. Lender, provide to the Borrowers and Lender Agent (i) two (2) accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (or successor forms)
certifying that such Non-U.S. Lender is entitled as of such date to a complete exemption from
United States withholding tax pursuant to an applicable income tax treaty with respect to payments
of interest to be made under this Agreement (or, in the case of an




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13









 







assignee, entitlement to a withholding tax rate that does not exceed the withholding tax rate in
respect of those Taxes in respect of interest for which the assignor was entitled to additional
payments under Section 3.02(a) at the time of the assignment), (ii) with respect to a
Non-U.S. Lender claiming exemption from United States withholding tax pursuant to its portfolio
interest exception, (x) a statement of such Non-U.S. Lender, signed under penalty of perjury, that
it is not (A) a “bank” as described in Section 881(c)(3)(A) of the Internal Revenue Code, (B) a 10%
shareholder of a Borrower (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code), or (C) a controlled foreign corporation related to a Borrower within the meaning of Section
864(d)(4) of the Internal Revenue Code (an “Exemption Certificate”), and (y) two properly
completed and executed original signed copies of Internal Revenue Service Form W-8BEN (or successor
form) certifying that such Non-U.S. Lender is entitled as of such date to a complete exemption from
United States withholding tax with respect to payments of interest to be made under this Agreement,
(iii) two (2) accurate and complete original signed copies of Internal Revenue Service Form W-8IMY
with any accompanying statement and certificate, or (iv) two (2) accurate and complete original
signed copies of any other form prescribed by applicable Requirements of Law as a basis for
claiming exemption from United States federal withholding tax, with such supplementary
documentation as may be prescribed by Requirements of Law to permit Borrowers to determine the
withholding or deduction required to be made. In addition, each Non-U.S. Lender agrees that from
time to time after the Closing Date, when the passage of time or a change in facts or circumstances
renders the previous certification obsolete or inaccurate in any material respect, or on the
Borrowers’ reasonable request, such Non-U.S. Lender will deliver to the Borrowers two (2) new
accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN
(with respect to a complete exemption under an income tax treaty), Form W-8BEN (with respect to the
portfolio interest exemption) and an Exemption Certificate, or Form W-8IMY with any accompanying
statement or certificate, as the case may be, and such other forms as may be required in order to
confirm or establish that such Non-U.S. Lender is entitled to a continued exemption from United
States withholding tax with respect to payments under this Agreement, or such Non-U.S. Lender shall
immediately notify the Borrowers of its inability to deliver any such form or Exemption
Certificate, in which case such Non-U.S. Lender shall not be required to deliver any such form or
Exemption Certificate. Notwithstanding anything to the contrary contained in this Section
3.02, the Borrowers agree to pay any additional amounts and to indemnify each Non-U.S. Lender
in the manner set forth in Sections 3.02(a) and (c) in respect of any United States
Taxes deducted or withheld by the Borrowers or paid by a Lender, if and to the extent that such
Taxes would not have been deducted or withheld or payable (and in the case of a payment by a
Lender, no exception is available to the making of such payment, as determined in the sole
discretion of such Lender) but for any change after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation thereof. Prior to
withholding any amount due a non-U.S. Lender because of such Lender’s failure to provide tax forms
or certifications under this Section 3.02, the Borrowers shall notify such non-U.S. Lender
of its intention to withhold not less than
 five (5) Business Days prior to such withholding.




          (g) Notwithstanding anything to the contrary contained in this Agreement, this Section
3.02 shall govern exclusively any increased costs relating to Taxes resulting from any change
in law.




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     Section 3.03. Fees and Expenses. The Borrowers agree to jointly and severally pay to
the Lender Agent and the Lenders any expenses (including reasonable fees and expenses of each
Lender’s counsel) incurred in connection with the negotiation, execution, delivery, administration
and enforcement of this Agreement and the Facility Documents (and any amendments, supplements,
modifications, consents or waivers thereto), including the reasonable fees and expenses (including,
without limitation, attorneys’ fees and expenses) of the First Priority Collateral Agent, the
Collateral Control Agent and the Valuation Agent.



     Section 3.04. Setoff. The Obligors agree that each Lender has all rights of set off
provided by applicable law, and in addition thereto, the Obligors agree that at any time any
Default exists, each Lender may appropriate and apply to the payment of any obligations of the
Obligors hereunder owed to it, whether or not then due, any and all balances, credits, deposits,
accounts or moneys of the Obligors then or thereafter maintained with or held by such Lender;
provided that any such appropriation and application shall be subject to Section
3.01(g). Each Lender shall promptly notify the applicable Obligors after making such exercise
of the right of set off; provided that failure to give such notice shall not affect the
validity of the set-off.



ARTICLE IV




ACCOUNTS AND COLLECTIONS




     Section 4.01. Concentration Accounts. Prior to the Account Transfer Date, but
subject to Account Exceptions, ResCap and its Subsidiaries shall continue to administer their cash
collection system as it was administered immediately prior to the Closing Date. To the extent in
place on or prior to the Closing Date, such administration shall include the sweep of cash from
accounts in the system to the Concentration Accounts. The Obligors will cause the Concentration
Accounts to be subject to the Account Control Agreements at all times at and after the Closing
Date.



     Section 4.02. Sales Proceeds Accounts. (a) On or before the Closing Date, the
Borrowers and the Lender Agent shall establish the Sales Proceeds Accounts. The Obligors hereby
agree that the Collateral Control Agent shall have exclusive control of the Sales Proceeds
Accounts. Any Net Cash Proceeds of Collateral Dispositions of Primary Collateral received by an
Obligor shall be deposited in the Sales Proceeds Accounts no later than the Applicable Deposit Date
and shall be held in the Sales Proceeds Accounts pending application of such proceeds to the
repayment of Loans or use pursuant to Section 4.02(b), and any such Net Cash Proceeds which
for any reason have not yet been deposited into the Sales Proceeds Accounts shall be deemed to be
held by such Obligor in trust for the Lenders and shall not be used by any Obligor for any purposes
whatsoever.



          (b) The Borrowers shall designate one or more of the Sales Proceeds Accounts as “Servicing
Advances Accounts”, and shall cause funds received in respect of the repayment of Primary
Collateral consisting of Servicing P&I Advances, Servicing Corporate Advances and Servicing T&I
Advances to be deposited in such Servicing Advances Accounts in accordance with Section
4.02(a); provided that until the Servicing Advance Exception End Date, Servicing
Advance Exception Funds in an amount not to exceed the Servicing Advance Exception Limit in effect
on such day need not be so deposited. Provided that no Default has




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15









 







occurred and is continuing, the Borrowers may withdraw amounts on deposit in such accounts to fund
additional Servicing P&I Advances, additional Servicing Corporate Advances and additional Servicing
T&I Advances, which additional Servicing P&I Advances, additional Servicing Corporate Advances and
additional Servicing T&I Advances shall become Primary Collateral concurrently with such funding.




     Section 4.03. Collections Deposited to Collection Accounts. The Obligors agree,
subject to the Account Exceptions, to use all commercially reasonable efforts to restructure their
cash management system prior to the Account Transfer Date so as to enable the Collateral Control
Agent to exercise control, pursuant to Alternate Account Control Agreements, over all material bank
and securities accounts of ResCap and its Subsidiaries intended to contain solely funds and
securities of ResCap and its Subsidiaries (excluding the Exempt Cash Reserve Account, accounts of
Financing SPVs, accounts of independent third parties, accounts setup for Bilateral Facilities and
accounts holding funds held on account for, in trust for, or by ResCap or a Subsidiary as a
custodian for, any third party) and cause all liquidity reserves (other than funds permitted to be
held in the Exempt Cash Reserve Account) of ResCap and its Subsidiaries to be on deposit in such
accounts, subject to such exceptions as the Lender Agent shall agree in writing. No later than the
Account Transfer Date and subject to the Account Exceptions and Section 4.02, the Obligors
shall arrange for (a) all Collections in respect of the Collateral to be deposited in an Alternate
Account or Collection Account no later than the Applicable Deposit Date, (b) all liquidity reserves
of ResCap and its Subsidiaries to be held (subject to the Account Exceptions) in the Alternate
Accounts or the Collection Accounts and (c) all funds which have been deposited in a Alternate
Account to be transferred to a Collection Account within two (2) Business Days of such deposit. To
the extent that any funds are not deposited or held in the Collections Accounts or the Alternate
Accounts in accordance with the preceding sentence, such funds shall be deemed to be held by such
Obligor, in trust for the Lenders and shall not be used by any Obligor for any purposes whatsoever.



     Section 4.04. Withdrawals from Designated Accounts; Account Notices. So long as no
Default has occurred and is continuing, the Lender Agent and Lenders shall permit the Obligors to
withdraw funds from each Concentration Account, Collection Account, Alternate Account and (to the
extent contemplated under Section 4.02) Sales Proceeds Accounts from time to time and the
Lender Agent agrees that it will not direct the Collateral Control Agent to provide any notice to
any account bank directing such account bank not to honor a request or instruction from any Obligor
with respect to any Concentration Account, Collection Account, Alternate Account or Sales Proceeds
Account prior to such time.



     Section 4.05. Cash and Cash Equivalents. Deposits in each Concentration Account,
Collection Account, Alternate Account or Sales Proceeds Account may be held in cash or Cash
Equivalents. To the extent that any funds that do not constitute Collateral or proceeds of
Collateral are deposited to any of such Accounts, as such funds are reasonably identified to the
Lender Agent in a timely manner, the Lender Agent shall instruct the Collateral Control Agent to
release such funds from the Lien of the Security Agreement.



ARTICLE V




CONDITIONS PRECEDENT




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     Section 5.01. Conditions Precedent. The obligation of the Lenders to make the
initial Loan shall be subject to the condition precedent that (a) the Lender Agent shall have
received (or waived delivery of) each of the items set forth in Schedule 5.01 (unless
otherwise indicated) dated such date, and in such form and substance, as is satisfactory to the
Lender Agent; and (b) the other conditions specified in Schedule 5.01 have been satisfied
or waived by the Lender Agent.



     Section 5.02. Further Conditions Precedent. The funding of each Loan hereunder
(including the initial Loan), and the automatic continuation of each Loan after the termination of
the immediately preceding Interest Period related to any Loan, shall in all events be subject to
satisfaction of the further conditions precedent set forth in Schedule 5.02 as of the
making of such Loan; provided that with respect to (i) the funding of a Revolving Loan
requested by the Borrowers to repay the Term Loans, and (ii) the automatic continuation of each
Loan after the termination of the immediately preceding Interest Period related to any Loan in
accordance with Section 2.09 of this Agreement, only the conditions precedent set forth in
paragraphs (b)-(f) of Schedule 5.02 shall be required to be satisfied.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     Section 6.01. Representations and Warranties of the Borrowers. Each Obligor
represents and warrants to each Lender Party that throughout the term of this Agreement (including
but not limited to as of the date of each borrowing of a Loan):



          (a) Organization and Good Standing. Each of such Obligor and each of its
Subsidiaries has been duly organized and is validly existing and in good standing under
the laws of its jurisdiction of organization, and has all requisite corporate or limited
liability company power and authority to own its properties and to conduct its business
as such properties are presently owned and such business is presently conducted, and had
at all relevant times, and now has, all necessary power, authority and legal right to own
the portion of the Collateral that it owns.




          (b) Due Qualification. Each of such Obligor and each of its Subsidiaries is duly
qualified to do business, and has obtained all necessary licenses and approvals, in all
jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification, licenses or approvals, except to the extent failure to so
qualify or to obtain licenses and approvals could not reasonably be expected to have a
Material Adverse Effect.




          (c) Power and Authority; Due Authorization. Each of such Obligor and each of its
Subsidiaries (i) has all necessary power and authority and legal right to (A) execute and
deliver each of the Facility Documents to be executed and delivered by it in connection
herewith, (B) carry out the terms of the Facility Documents to which it is a party and
(C) borrow the Loans or provide the Guarantee hereunder (as applicable) and grant a
security interest or lien in the portion of the Collateral that it owns on the terms and
conditions herein provided or as otherwise required by the Facility
Documents and (ii) has taken all necessary corporate, partnership or limited
liability company action to duly authorize (A) such borrowing, guarantee and/or grant, as




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appropriate and (B) the execution, delivery, and performance of this Agreement and all of
the Facility Documents to which it is a party.




          (d) Binding Obligations. Each Facility Document to which such Obligor and any of
its Subsidiaries is a party constitutes, or when duly executed and delivered by such
Obligor or Subsidiary will constitute, the legal, valid and binding obligations of such
Obligor or such Subsidiary enforceable against it in accordance with its respective
terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization,
or other similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.




          (e) No Violation. Except for those consents required in connection with the Lenders
exercising their rights under Section 8.02 hereof, neither the execution and
delivery of the Facility Documents, nor the consummation of the transactions contemplated
hereby and thereby, will conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice, lapse of time or both) a default
under, its organizational documents or any indenture, loan agreement, mortgage, deed of
trust, or other material agreement or instrument to which such Obligor or any of its
Subsidiaries is a party or by which any of them or their property is otherwise bound, or
result in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, loan agreement, mortgage, deed of trust, or other
agreement or instrument, other than this Agreement and the Security Documents, or violate
any Requirements of Law applicable to it of any Governmental Authority having
jurisdiction over it or any of its properties if such violation, individually or in the
aggregate, is reasonably likely to result in a Material Adverse Effect.




          (f) No Proceedings. There are no proceedings or investigations pending, or to the
best of such Obligor’s knowledge threatened in writing, against it before any court,
regulatory body, administrative agency, or other tribunal or governmental instrumentality
(i) asserting the invalidity of any Facility Document, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any Facility Document, or (iii)
seeking any determination or ruling that could reasonably be expected to have a Material
Adverse Effect; provided, however, that this representation shall not apply to (x)
matters that have been disclosed to the Lender Agent in writing prior to closing, or (y)
matters arising from the attempts of the Obligors to enforce their rights with respect to
the Collateral other than purported or certified class action law suits involving any
portion of the Collateral or Supporting Assets consisting of mortgage loans which have a
material impact on the enforceability or value of the such mortgage loans or the Lender’s
security therein.




          (g) Government Approvals. No authorization, consent, approval, or other action by,
and no notice to or filing with, any court, governmental authority or regulatory body or
other Person, domestic or foreign, is required for its due execution, delivery or
performance of any Facility Document to which such Obligor is a party except for (i)
consents that have been obtained in connection with transactions
contemplated by the Facility Documents, (ii) filings to perfect the security
interest created by the Security Documents and consents required in connection with the
First Priority Collateral Agent exercising its rights under Section 8.02 hereof.




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          (h) Solvent: Fraudulent Conveyance. Such Obligor and its Subsidiaries are Solvent
and will not cease to be Solvent due to any Loan or any Guaranty hereunder (both
immediately before and after giving effect to such Loan or Guaranty). The amount of
consideration being received by an Obligor upon its pledge or provision of any Collateral
to the First Priority Collateral Agent for the benefit of the Lender Parties constitutes
reasonably equivalent value and fair consideration for such Collateral. No Obligor is
pledging or providing any Collateral with any intent to hinder, delay, or defraud any of
its creditors.




          (i) Margin Regulations. Margin Stock (as defined in the regulations of the Board)
constitutes less than 25% of the value of those assets of it that are subject to any
limitation on sale, pledge, or other restriction hereunder. No Obligor is engaged in the
business of extending credit for the purpose of buying or carrying Margin Stock, and no
proceeds of Loans will be used to purchase or carry Margin Stock or otherwise for a
purpose that violates, or would be inconsistent with, F.R.S. Board Regulations T, U or X.




          (j) Accurate Reports. No written information, exhibit, financial statement,
document, book, record, or report furnished or to be furnished or caused to be furnished
by such Obligor to the Lender Agent or any Lender in connection with the Facility
Documents was inaccurate in any material respect as of the date it was dated or (except
as otherwise disclosed in writing to the Lenders or the Lender Agent at such time) as of
the date so furnished, or contained any material misstatement of fact or omitted to state
a material fact or any fact necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading.




          (k) No Default. No Default has occurred and is continuing.




          (l) Investment Company Act. Neither such Obligor nor any of its Subsidiaries is
required to register as an “investment company” under the Investment Company Act.




          (m) Taxes. Each of such Obligor and each of its Subsidiaries has filed all material
United States federal tax returns and all other material returns that are required to be
filed, and has paid all material taxes due pursuant to said returns or pursuant to any
assessment received by it, except such taxes, if any, as are being contested in good
faith by appropriate proceedings diligently conducted and as to which adequate reserves
have been provided in accordance with GAAP. The charges, accruals and reserves on the
books of such Obligor in respect of taxes and other governmental charges are, in the
opinion of such Obligor, adequate.




          (n) Approved Servicer. With respect to the Borrowers only, each Borrower is
approved by Fannie Mae as an approved lender, and GMAC Mortgage is approved by each of
Freddie Mac and Ginnie Mae as an approved seller, HUD pursuant to Sections 203 and 211 of
the National Housing Act, the FHA as an FHA Approved
Mortgagee and Servicer, and the VA as a VA Approved Lender. GMAC Mortgage is
approved by Freddie Mac, Fannie Mae and Ginnie Mae as an approved servicer. In each such
case, (w) each Borrower is in good standing with Freddie Mac, Ginnie Mae, HUD, the FHA,
and/or the VA, as applicable, (x) no circumstances exist that would either entitle
Freddie Mac, Ginnie Mae, HUD, the FHA or the VA to revoke or suspend any such approvals
or entitle Freddie Mac or Ginnie Mae to terminate




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any Borrower as servicer for cause under any servicing arrangement, (y) no Borrower
has received from Freddie Mac, Ginnie Mae, HUD, the FHA or the VA any notice revoking or
suspending, or indicating any intent to revoke or suspend or indicating any adverse fact
or circumstance which could reasonably be expected to entitle Freddie Mac, Ginnie Mae,
HUD, the FHA or the VA, as the case may be, to revoke or suspend any of the
aforementioned approvals, and (z) each FHA Insurance Contract and VA Guaranty Agreement
applicable to the Borrowers or any other Obligor or their Subsidiaries is in full force
and effect.




          (o) Financial Statements. (i) ResCap has delivered to the Lender Agent a copy of
(1) ResCap’s audited, consolidated financial statements dated as of December 31, 2007,
comprised of the consolidated statements of income or operations and cash flows for the
preceding twelve (12) month period and the consolidated balance sheet as at December 31,
2007, and (2) ResCap’s quarterly consolidated financial report for the period ended March
31, 2008; each was prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, subject to ordinary,
good faith year-end audit adjustments; and each of (1) and (2) are correct in all
material respects and fairly present the consolidated financial condition of ResCap and
its consolidated Subsidiaries, as of the dates thereof and consolidated results of
operations for the periods covered thereby and (ii) As of the date of this Agreement,
since March 31, 2008, other than as has been previously disclosed by the Borrowers or
ResCap to the Lenders or the Lender Agent prior to the date hereof, there has been no
change in such financial condition or results of operation that is reasonably likely to
have a Material Adverse Effect. Except as discussed in the financial statements, it is
not subject to any contingent liabilities or commitments that, individually, or in the
aggregate, has or could reasonably be expected to have a Material Adverse Effect.




          (p) Chief Executive Office. RFC’s chief executive office is located at One Meridian
Crossings, Suite 100, Minneapolis, MN 55423 or at such other location as hereafter
disclosed to the Lender Agent in writing. GMAC Mortgage’s chief executive office is
located at 1100 Virginia Drive, Fort Washington, PA 19034 or at such other location as
hereafter disclosed to the Lender Agent in writing. The chief executive office of the
Guarantors are as set forth in Schedule II to the Security Agreement or at such other
locations as hereafter disclosed to the Lender Agent in writing.




          (q) Location of Books and Records. The location where such Obligor keeps its books
and records, including all electronic files and records relating to the Collateral that
it owns, is its chief executive office or such other location as disclosed to the Lender
Agent in writing.




          (r) Compliance with Laws. It is in compliance in all material respects with all
applicable Requirements of Law; provided that any such failure to comply with
applicable Requirements of Law with respect to MHF Assets resulting solely from a default
by a third-party customer of MHF in the performance of its obligations (including any
obligation to comply with law) to MHF shall not constitute an Event of
Default unless such failure to comply could reasonably be expected to give rise to
liabilities payable out of Collateral other than MHF Assets.




          (s) [Reserved].




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          (t) ERISA. Each Pension Plan is in compliance in all material respects with, and
has been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Internal Revenue Code and all other applicable Federal and State
laws, and no event has occurred or is reasonably expected to occur with respect to any
such Pension Plan or any Multiemployer Plan that has resulted in or is reasonably
expected to result in a Material Adverse Effect.




ARTICLE VII




COVENANTS




     Section 7.01. Affirmative Covenants of the Obligors. Each Obligor covenants and
agrees with the Lender Parties that, until all Loans and other Obligations have been paid in full
in cash and the Commitments have terminated or expired, such Obligor will perform or cause to be
performed the obligations set forth below in this Article VII:



          (a) Compliance with Laws, Etc. Each of such Obligor and each of its Subsidiaries
shall comply in all material respects with all applicable Requirements of Law,
provided that any such failure to comply with applicable Requirements of Law with
respect to MHF Assets resulting solely from default by a third-party customer of MHF in
the performance of its obligations (including any obligation to comply with law) to MHF
shall not constitute an Event of Default unless such failure to comply could reasonably
be expected to give rise to liabilities payable out of Collateral other than MHF Assets.




          (b) Performance and Compliance with Agreements. Each Obligor and each Subsidiary
thereof shall comply with all provisions, covenants and other promises required to be
observed by it under each of the Facility Documents to which it is a party (subject to
all applicable grace periods as provided therein).




          (c) Taxes. Each of such Obligor and each of its Subsidiaries shall pay and
discharge promptly when due all material taxes and governmental charges imposed upon it
or upon its income or profits or in respect of its property, in each case before the same
shall become delinquent or in default and before penalties accrue thereon, unless and to
the extent such taxes are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves shall, to the extent
required by GAAP, have been set aside.




          (d) Due Diligence. Such Obligor agrees and acknowledges that (i) the Lender Agent,
at such party’s own expense except as set forth as provided herein, has the right to
perform continuing due diligence reviews with respect to the Collateral, for purposes of
verifying compliance with the representations, warranties, and specifications made
hereunder and under the other Facility Documents, or otherwise, and (ii) the Lender Agent
and its Responsible Officers will be permitted during normal business hours to examine,
inspect, make copies of, and make extracts of, any and all
documents, records, agreements, instruments or information relating to the
Collateral in its possession. Notwithstanding anything to the contrary herein, the
Borrowers shall jointly and severally reimburse the Lender Agent for any and all
out-of-pocket costs and expenses reasonably incurred by such party and its respective
designees and agents in connection with the ongoing due diligence and auditing activities
(A) not more than once a year,




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if no Event of Default has occurred and is continuing and (B) at all times during
any period in which an Event of Default has occurred and is continuing.




          (e) Legal Existence, etc. Such Obligor shall (i) preserve and maintain its legal
existence and good standing and the legal existence and good standing of its Subsidiaries
and, except to the extent such failure to so preserve and maintain is not reasonably
expected to have a Material Adverse Effect, preserve and maintain all of its rights,
privileges, authorizations, approvals, licenses and franchises; and (ii) keep adequate
records and books of account, in which complete entries will be made in accordance with
GAAP consistently applied.




          (f) Financial Statements. ResCap shall deliver each of the following to the Lender
Agent:




               (i) as soon as available, but not later than forty-five (45) calendar days
after the end of each fiscal quarter ending on March 31, June 30 and September 30,
ResCap’s unaudited consolidated balance sheet as at the end of such fiscal quarter,
the related unaudited, consolidated statement of income for such quarter and the
portion of the fiscal year through the end of such quarter and the related unaudited
consolidated statements of retained earnings and cash flows for the portion of the
fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year;



               (ii) as soon as available, but not later than ninety (90) days after the end of
each fiscal year ResCap’s audited consolidated balance sheet as at the end of such
fiscal year and the related consolidated statements of income and retained earnings
and cash flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous year, and accompanied by the opinion of an independent
certified public accountant of recognized national standing, which report shall
state that such consolidated financial statements present fairly ResCap’s
consolidated financial position and the results of its operations for the periods
indicated in conformity with GAAP, consistently applied. Such opinion shall not be
qualified or limited because of a restricted or limited examination by the
independent auditor of any material portion of its books and records and shall have
no “going concern” qualification;



               (iii) as soon as available, but not later than thirty (30) days after the end
of each calendar month ResCap’s consolidated balance sheet as at the end of such
calendar month and the related consolidated statements of income for such calendar
month, setting forth in each case in comparative form the figures for the previous
calendar month, and certified by a Responsible Officer of ResCap as fairly
presenting in all material respects, in accordance with GAAP, consistently applied,
as at the end of, and for such period, ResCap’s consolidated financial position and
the results of ResCap’s consolidated operations; and



               (iv) concurrently with the delivery of the financial statements referred to in
subsections 7.01(f)(i), (ii), and (iii), a duly completed Compliance Certificate
executed by a Responsible Officer of ResCap.



          (g) Required Reports; Additional Information. The Borrowers will at the times
specified in Schedule 7.01(g) attached hereto deliver to the Lender Agent the
reports identified in such schedule, a Reinvestment Schedule and a Reinvestment
Certificate, and




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promptly furnish to the Lender Agent all notices of all final written audits,
examinations, evaluations, reviews and reports of the Obligors’ origination and servicing
operations by any state mortgage banking licensing agency or instrumentality (including
those prepared on a contract basis for any such agency) in which there are material
adverse findings, including without limitation notices of termination or impairment of
approved status, and notices of probation, suspension or non-renewals, and such other
information, documents, records or reports with respect to the Collateral or the
conditions or the Obligors’ operations, financial or otherwise, as the Lender Agent may
from time to time reasonably request.




          (h) Peak Score. GMAC Mortgage shall maintain a monthly Peak Score from Fannie Mae
which equates to a score of “Excellent” or better.




          (i) Quality Control. Each of such Obligor and each of its Subsidiaries shall
conduct quality control reviews of its servicing operations in accordance with industry
standards and past practice. Each Obligor shall report to the Lender Agent quality
control findings as such reports are produced and upon reasonable request by the Lender
Agent.




          (j) Insurance. Such Obligor shall maintain such insurance with financially sound
and reputable insurance companies, and with respect to property and risks of a character
usually maintained by entities engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts customarily
maintained by such entities.




          (k) Use of Proceeds. The Borrowers (and ResCap, to the extent such proceeds are
distributed to it through a Permitted Restricted Payment) shall use the proceeds of the
Loans (i) to repay Indebtedness of ResCap existing on the Closing Date on or prior to the
maturity thereof, (ii) to acquire assets in accordance with this Agreement and the other
Facility Documents, and (iii) for other working capital purposes.




          (l) Accounts. (i) ResCap shall not hold in the Exempt Cash Reserve Account any
amount in excess of the sum of $250,000,000 and any investment earnings on such amount
accrued and retained therein, and (ii) on or before the Account Transfer Date, the
Obligors will (subject to the provisions of Sections 4.02 and 4.03 and
the Account Exceptions) insure that all Collections with respect to Collateral (other
than funds deposited in the Exempt Cash Reserve Account as described above) are deposited
directly into the Collection Accounts and/or one or more Alternate Accounts.




          (m) Custodial Procedures. On or before the Custodial Transfer Date, the Borrowers
and Obligors will enter into one or more schedules to the Master Custody Agreement
attached hereto as Schedule 7.01(m) governing the custody of certain
documentation for Primary Collateral consisting of Mortgage Loans, in form and substance
satisfactory to the Lender Agent.




          (n) Collections and Net Cash Proceeds Reporting. The Borrowers will, within ten
Business Days of the end of each calendar month, provide a written statement to the
Lender Agent and each Lender of (i) the aggregate Net Cash Proceeds of all Collateral
Dispositions of Primary Collateral of the Obligors and their Subsidiaries, (ii) the
aggregate Fair Value of the Reinvestment Collateral received as Permitted Consideration
for Collateral Dispositions of




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Primary Collateral of the Obligors and their Subsidiaries, (iii) the aggregate
Collections received relating to Primary Collateral, in each case during the immediately
preceding calendar month, and (iv) the Fair Value of the Primary Collateral of each
Obligor at the beginning of such calendar month and at the end of such calendar month.




          (o) REO Property. With respect to any Primary Collateral consisting of REO Property
(other than REO Property held by BCG), the Obligors will obtain a broker price opinion
every ninety (90) days for so long as such Primary Collateral is retained.




          (p) Servicing of Collateral. Such Obligor will ensure, and will direct its
Subsidiaries to ensure, that the Collateral owned by it or its Subsidiaries (as
applicable) is serviced and administered at all times in accordance with the procedures
(including but not limited to collection and enforcement procedures, the maintenance of
insurance, custodial arrangements, documentation retention, and the making of servicer
advances, including servicer advances with respect to residential mortgage assets
(excluding BCG Assets)) that each Borrower or other Obligor (as the case may be)
customarily employs and exercises (or requires to be employed or exercised by those
servicing its other assets) in its good faith business judgment and which are normal and
usual in the servicing of its other assets, and that such servicing and administration is
conducted in the best interest of and for the benefit of the Lender Parties.




          (q) Structuring for Eligible Collateral Acquisition, Excluded Assets, Non-UCC
Assets. Such Obligor will use commercially reasonable efforts to (i) structure future
Permitted Funding Indebtedness and asset acquisitions in a manner that will enable the
Borrowers and the Obligors to acquire Eligible Assets that may become Reinvestment
Collateral, (ii) cause any Excluded Asset (other than assets that were Excluded Assets
pursuant to clauses (b), (c), (d), (f) or (g) of
the definition thereof on the Closing Date) to become eligible for inclusion in the
Collateral, (iii) perfect the Lien created under the Security Agreement with respect to
all Non-UCC Assets with a Fair Value greater than $50,000,000.




          (r) Further Assurances. Such Obligor will, and will cause each of its Subsidiaries
to, at its own expenses promptly execute and deliver to the Lender Agent, the First
Priority Collateral Agent or the Collateral Control Agent all such other documents,
agreements and instruments reasonably requested by the Lender Agent, the First Priority
Collateral Agent or the Collateral Control Agent to comply with, cure any defects or
accomplish the conditions precedent, covenants and agreements of the Borrowers and the
Guarantors in the Facility Documents, if requested, or to further evidence and more fully
describe the collateral intended as security for the Obligations, or to correct any
omissions in this Agreement or the Facility Documents, or to state more fully the
obligations secured therein, or to perfect, protect or preserve any Liens created
pursuant to any of the Security Documents or the priority thereof, or to make any
recordings, file any notices or obtain any consents, all as may be reasonably necessary
or appropriate, in the sole discretion of the Lender Agent, in connection therewith.
Each Obligor hereby authorizes, without obligation, the Lender Parties to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of any Collateral or any part thereof or any other collateral
without the signature of any Obligor where permitted by law. Without limiting the
foregoing, each Obligor agrees that the Lender Agent and the First Priority Collateral
Agent are hereby authorized to file, at such times as the Lender




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24









 







Agent deems necessary or desirable, UCC financing statements naming it and its
Subsidiaries as debtor and describing the collateral as “all personal property” or “all
assets” of such debtor whether now or hereafter acquired, or words of like import.




          (s) Additional Guarantors.




               (i) ResCap and the Borrowers will, contemporaneously with the direct or
indirect acquisition of any Person which upon such acquisition is, or of any asset
which causes the Subsidiary acquiring such assets (without regard to any other
assets of such Subsidiary) to be, a Significant Subsidiary (other than an Excluded
Subsidiary), cause such Person or Subsidiary to execute a joinder agreement in form
and substance reasonably satisfactory to the Lender Agent whereby such Person or
Subsidiary unconditionally agrees to become a party to, and assume all obligations
under, this Agreement as a Guarantor.



               (ii) ResCap and the Borrowers will, contemporaneously with the guarantee by any
Subsidiary of any Indebtedness of ResCap or any other Guarantor, cause such
Subsidiary (unless such Subsidiary is already a Guarantor) to execute a joinder
agreement in form and substance reasonably satisfactory to the Lender Agent whereby
such Subsidiary unconditionally agrees to become a party to, and assume all
Obligations as a Guarantor.



               (iii) ResCap and the Borrowers will, within forty-five (45) days after the end
of each of the first three fiscal quarters of each year and ninety (90) days after
the end of each fiscal year, cause each Person that is a Significant Subsidiary
(other than an Excluded Subsidiary) as of the end of such quarter or fiscal year
that is not already a Guarantor to execute a joinder agreement in form and substance
reasonably satisfactory to the Lender Agent whereby such Person unconditionally
agrees to become a party to, and assume all obligations under, this Agreement as a
Guarantor.



          (t) Terms of Bilateral Facilities. The Obligors shall (i) give not less than ten
(10) Business Days’ prior written notice to the Lender Agent of any amendment of any
Bilateral Facility to (x) the definition of “Solvent” or an equivalent or any
representation relating to solvency contained in any such Bilateral Facility, (y) the
definition of “Change of Control” or the equivalent in any such Bilateral Facility, or
(z) any of the definitions of the terms that comprise the definitions referenced in
clauses (x) or (y) above or the representation related to solvency
contained in any such Bilateral Facility, and (ii) no later than the date on which such
provision(s) shall be amended under any Bilateral Facility, enter into such amendments
hereto as may be required by the Lender Agent to conform in all material respects to the
related provisions of this Agreement to such amendment(s).




          (u) Clear Lien Exceptions. The Obligors will ensure that the Identified Lien
Exceptions (other than those denoted with an asterix on Schedule VI(a) to the Security
Agreement) cease to be Liens on any portion of the Collateral on or prior to June 30,
2008.




     Section 7.02. Negative Covenants of the Obligors. Each Obligor covenants and agrees
with the Lender Parties that, until all Loans and other Obligations have been paid in full in cash
and the Commitments have terminated or expired, it shall not, and shall not permit any Subsidiary
to:



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          (a) other than in accordance with Section 7.02(k), take any action that
would directly or indirectly materially impair or materially adversely affect its title
to, or the value of, the Collateral; provided that (i) actions in accordance with
the Credit and Collection Policies, (ii) modifications implemented in a good faith
attempt to increase the recovery on, or collectibility of, delinquent or distressed
Collateral or (iii) Collateral Dispositions otherwise permitted hereunder shall not
constitute a violation of this Section 7.02(a);




          (b) engage in any line of business activity other than the businesses in
substantially the same fields of enterprise are conducted on the date hereof;




          (c) amend, modify or waive any term or condition of any Facility Document, or
consent to any amendment, modification or waiver of any term or condition of any Facility
Document, without the prior written consent of the requisite Lenders (as specified in
Section 13.01);




          (d) change its name, organizational identification number, organizational structure
or its state of incorporation, organization or formation unless it shall have given the
Lender Agent at least thirty (30) days’ prior written notice thereof and unless, prior to
any such change, it shall have filed, or caused to be filed, such financing statements or
amendments and taken such further action as any Lender or the Lender Agent determines may
be reasonably necessary to continue the perfection and priority of the First Priority
Collateral Agent’s interest (on behalf of the Lender Parties) in the Collateral;




          (e) [Reserved];




          (f) at any time create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of any Indebtedness (including Acquired
Indebtedness) other than Permitted Indebtedness;




          (g) directly or indirectly, make any Restricted Payment unless, at the time of and
after giving effect to the proposed Restricted Payment either (i) (A) no Default shall
have occurred and be continuing or will occur as a consequence thereof and (B) after
giving effect to such Restricted Payment on a pro forma basis, the aggregate amount
expended or declared for all Restricted Payments made on or after the Closing Date
(excluding Restricted Payments described in clauses (b), (c),
(d), (e), (f) and (g) of the definition of Permitted
Restricted Payments), shall not exceed the Restricted Payment Maximum Amount or (ii) such
Restricted Payment is a Permitted Restricted Payment;




          (h) at any time create or suffer to exist any Lien (other than any Permitted Liens)
on any of its assets or property (whether now owned or hereafter acquired) which is
Collateral;




          (i) if, on any Business Day, the aggregate amount of Consolidated Liquidity shall be
less than $750,000,000, ResCap shall within two (2) Business Days (if such Business Day
is a Remittance Date) or (in all other cases) one (1) Business Day, cause the aggregate
amount of Consolidated Liquidity to be not less than $750,000,000; provided that,
at no time shall ResCap permit the aggregate amount of Consolidated Liquidity to be less
than $450,000,000; provided further that, at no time shall ResCap permit
the aggregate amount of




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unrestricted and unencumbered (x) cash (consisting solely of United States dollars held
at all times in the United States by ResCap on a consolidated basis (excluding GMAC
Bank)), and (y) Cash Equivalents held by ResCap on a consolidated basis (excluding GMAC
Bank) (consisting solely of (i) securities with maturities of 90 days or less from the
date of acquisition issued or fully guaranteed or insured by the United States Government
or any agency thereof, and (ii) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clause (i)) to be
less than $250,000,000.




          (j) permit, as of the last Business Day of each fiscal month of ResCap, the
Consolidated Tangible Net Worth of ResCap to be less than $250,000,000;




          (k) consummate a Collateral Disposition unless (i) it (or the applicable Subsidiary,
as the case may be) receives consideration in the form of Permitted Consideration, and
(ii) at the time of the Collateral Disposition, the Permitted Consideration received in
such Collateral Disposition by it or such Subsidiary is at least substantially equivalent
to the Fair Value of the Primary Collateral or Supporting Assets issued or sold or
otherwise disposed of; provided that this clause (k) will not apply to
MHF Assets;




          (l) except for Affiliate Transactions engaged by or with any Excluded Subsidiary,
directly or indirectly, engage in any Affiliate Transaction which is not a Permitted
Affiliate Transaction unless (i) such Affiliate Transaction is on terms that are not
materially less favorable to it or the relevant Subsidiary than those that could
reasonably have been obtained in a comparable arm’s length transaction by it or such
Subsidiary with an unaffiliated party (provided that any transactions between
Obligors shall be in compliance with the corporate governance policies of each such
Obligor), (ii) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $250,000,000, it delivers to
the Lender Agent a resolution adopted in good faith by the majority of its Board of
Directors approving such Affiliate Transaction and set forth in an officers’ certificate
certifying that such Affiliate Transaction complies with clause (i) above, and
(iii) with respect to any Affiliate Transaction or series of related Affiliate
Transactions (other than Servicing Advance Factoring Sales) involving aggregate
consideration in excess of $500,000,000, it obtains and delivers to the Lender Agent a
written opinion of a nationally recognized independent third-party investment banking,
accounting or appraisal firm acceptable to the Lender Agent stating that the transaction
is fair to it or such Subsidiary, as the case may be, from a financial point of view;




          (m) amend or otherwise modify its organizational documents if the result would have
a material adverse effect on the Lender Parties (including on the rights or remedies of
the Lender Parties);




          (n) amend or otherwise modify the 2010 Indenture or the 2015 Indenture if the result
of such amendment or modification could reasonably be expected to result in a Material
Adverse Effect or materially adversely effect the Lender Parties or their rights,
priority and/or remedies under the Facility Documents;




          (o) enter into any agreement (other than a Facility Document) prohibiting,
restricting or otherwise limiting (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired (other than
limits arising from the




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2010 Indenture or the 2015 Indenture or agreements governing Permitted Funding
Indebtedness and Permitted Refinancing Indebtedness restricting Liens on any collateral
covered by Permitted Liens arising under such agreements), (ii) the ability of any
Obligor to amend or otherwise modify any Facility Document, or (iii) the ability of any
Obligor or other Significant Subsidiary to make any payments, directly or indirectly, to
the Borrowers or any Guarantor, including by way of dividends, distributions, advances,
repayments of loans, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments (including, without limitation,
entering into any agreement by any Obligor or other Significant Subsidiary that requires
distributions otherwise payable to the Borrowers to be escrowed or to be subject to a
sinking fund or other similar restriction or to be paid to another Person);




          (p) permit ResCap, the Borrowers, any other Obligor or any Significant Subsidiary of
ResCap to merge or consolidate with any other corporation or other entity or sell,
assign, transfer, lease or otherwise convey all or substantially all of its property or
assets to any Person, or permit any Subsidiary of such foregoing entities to do so,
unless (i) such entity is the survivor or such entity’s successor is a person organized
and existing under the laws of the United States or a state thereof and expressly assumes
all of such entity’s obligations under this Agreement and the other Facility Documents;
(ii) immediately after giving effect to such consolidation, merger, sale or conveyance,
no Default shall have occurred and be continuing; and (iii) each Guarantor confirms that
each of its guarantees with respect to the Facility Documents shall remain in full force
and effect; provided that none of ResCap, the Borrowers, any other Obligor or any
Significant Subsidiary of ResCap shall merge or consolidate with GMAC Bank such that GMAC
Bank is the surviving entity or sell, assign, transfer, lease or otherwise convey all or
substantially all of its property or assets to GMAC Bank, or permit any of their
Subsidiaries to do so;




          (q) permit ResCap to directly own any assets other than (i) Equity Interests of the
other Obligors, (ii) assets in respect of hedging arrangements, (iii) so long as no Event
of Default has occurred and is continuing, cash and cash equivalents and other immaterial
assets in the ordinary course of business consistent with past practice, (iv) assets
which are subject to a Lien as Collateral under the Security Documents and (v) the
Exempted Cash Reserve Account;




          (r) use the Net Cash Proceeds from any Servicing Advance Factoring Sale for any
purpose other than (i) during the Deferral Period, the funding of servicing advances and
(ii) the purchase of Eligible Assets consisting of Servicing T&I Advances, Servicing P&I
Advances or Servicing Corporate Advances which become Primary Collateral; or




          (s) permit the Servicing Advance Exception Funds on any day to exceed the Servicing
Advance Exception Limit.




     Section 7.03. Notice of Certain Occurrences. Each Obligor covenants and agrees with
the Lender Parties that, until all Loans and other Obligations have been paid in full in cash and
the Commitments have terminated or expired:



          (a) Defaults. As soon as possible, but in any event within one Business Day, after
any Obligor obtains knowledge of any Default, it shall furnish or cause to be furnished
to the Lender Agent, the First Priority Collateral Agent and the Collateral Control Agent
a written




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statement of a Responsible Officer of the Borrowers setting forth details of such
Default and the action that it proposes to take with respect thereto;




          (b) Litigation. As soon as possible, but in any event within ten (10) Business
Days, after any Obligor obtains knowledge thereof, it shall furnish or cause to be
furnished to the Lender Agent, the First Priority Collateral Agent and the Collateral
Control Agent notice of any material action, suit or proceeding instituted by or against
it or any of its Subsidiaries in any federal or state court or before any commission,
regulatory body or Governmental Authority;




          (c) Material Adverse Effect. Within one Business Day of it becoming aware of any
event or circumstance that could reasonably be expected to have a Material Adverse
Effect, it shall furnish or caused to be furnished to the Lender Agent, the First
Priority Collateral Agent and the Collateral Control Agent written notice of such event
or circumstance;




          (d) Change of Control. It shall furnish or caused to be furnished to the Lender
Agent, the First Priority Collateral Agent and the Collateral Control Agent notice of any
Change of Control upon the occurrence of such event;




          (e) Event of Default. Within three Business Days after any Obligor obtains
knowledge thereof, it shall furnish or cause to be furnished to the Lender Agent, the
First Priority Collateral Agent and the Collateral Control Agent notice of any default or
event of default under any organizational or constitutive document of any Obligor;




          (f) Adverse Judgment. Within three Business Days after the entry of a judgment or
decree against any Obligor in an amount in excess of $25,000,000, it shall furnish or
cause to be furnished to the Lender Agent, the First Priority Collateral Agent and the
Collateral Control Agent notice thereof;




          (g) Accounting Policies. It shall furnish or cause to be furnished to the Lender
Agent, the First Priority Collateral Agent and the Collateral Control Agent within three
Business Days notice of any material change in accounting policies or financial reporting
practices of the Obligor, except for those changes that are in conformity with new or
revised GAAP;




          (h) Rating. Within three Business Days after any Obligor obtains knowledge thereof,
it shall furnish or cause to be furnished to the Lender Agent, the First Priority
Collateral Agent and the Collateral Control Agent notice of any decrease in the servicer
rating of any Servicer by any Agency;




          (i) Agency Termination. Upon the receipt by any Obligor of any notice received from
Freddie Mac, Fannie Mae or Ginnie Mae terminating, or indicating any intent to terminate,
or indicating any adverse fact or circumstance which could reasonably be expected to
entitle Freddie Mac, Fannie Mae or Ginnie Mae to terminate, such Obligor for cause from
any servicing arrangement with such agency, it shall furnish or cause to be furnished to
the Lender Agent, the First Priority Collateral Agent and the Collateral Control Agent
notice thereof;




          (j) Agency Suspension. Upon the receipt by any Obligor of any notice received from
any Freddie Mac, Fannie Mae, Ginnie Mae, HUD, the FHA or the VA revoking or




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suspending, or indicating any intent to revoke or suspend, or indicating any adverse fact
or circumstance which could reasonably be expected to entitle such agency to revoke or
suspend any of the approvals granted to such Obligor that are referenced in Section
6.01(n) hereof, it shall furnish or cause to be furnished to the Lender Agent, the
First Priority Collateral Agent and the Collateral Control Agent notice thereof;




          (k) Insurance Coverage. Within three Business Days after any Obligor obtains
knowledge thereof, it shall furnish or cause to be furnished to the Lender Agent, the
First Priority Collateral Agent and the Collateral Control Agent notice of any material
change in the insurance coverage maintained by such Obligor or any other person to comply
with the requirements of this Agreement, with a copy of evidence of the same.




          (l) ERISA. As soon as reasonably possible, and in any event within thirty (30) days
after a Responsible Officer of any Obligor knows, or with respect to any Pension Plan or
Multiemployer Plan to which any Obligor or any of their respective Subsidiaries makes
direct contributions, has reason to believe, that any of the events or conditions
specified below with respect to any such Pension Plan or Multiemployer Plan has occurred
or exists, such Obligor will deliver to the Lender Agent, the First Priority Collateral
Agent and the Collateral Control Agent a statement signed by a senior financial officer
of the relevant Obligor setting forth details respecting such event or condition and the
action, if any, that such Obligor or one of its Subsidiaries proposes to take with
respect thereto (and a copy of any report or notice required to be filed with or given to
PBGC by the Obligor or such Subsidiary with respect to such event or condition):




     (A) any reportable event, as defined in Section 4043(b) of ERISA, with respect
to a Pension Plan, as to which the PBGC has not by regulation or otherwise waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days of the occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code or Section 302
of ERISA, such that Section 430(k) of the Internal Revenue Code would apply, shall
be a reportable event regardless of the issuance of any waivers in accordance with
Section 412(c) of the Internal Revenue Code) and any request for a waiver under
Section 412(c) of the Internal Revenue Code for any Pension Plan;



     (B) the distribution under Section 4041(c) of ERISA of a notice of intent to
terminate any Pension Plan or any action taken by any Obligor or one of their
respective Subsidiaries to terminate any Pension Plan;



     (C) the institution by the PBGC of proceedings under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan,
or the receipt by any Obligor or one of their respective Subsidiaries of a notice
from a Multiemployer Plan that such action has been taken by the PBGC with respect
to such Multiemployer Plan;



     (D) the complete or partial withdrawal from a Multiemployer Plan by any Obligor
or any of their respective subsidiaries that results in liability to such Obligor or
Subsidiary under Section 4201 or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default) or the receipt by any
Obligor from a Multiemployer Plan that it is in



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reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA;




     (E) the institution of a proceeding by a fiduciary of any Multiemployer Plan
against any Obligor or one of their subsidiaries to enforce Section 515 of ERISA,
which proceeding is not dismissed within thirty (30) calendar days; and



     (F) the failure of any Pension Plan to meet the requirements of Section 436 of
the Internal Revenue Code, resulting in a loss of tax-exempt status of the trust of
which such Pension Plan is a part under Section 401(a)(29) of the Internal Revenue
Code.



          (m) Other. Promptly, from time to time, it will furnish to the Lender Agent, each
Lender, the First Priority Collateral Agent and the Collateral Control Agent such other
information, documents, records or reports with respect to the Collateral or its
corporate affairs, conditions or operations, financial or otherwise, as the Lender Agent,
any Lender, the First Priority Collateral Agent or the Collateral Control Agent may from
time to time reasonably request.




ARTICLE VIII




EVENTS OF DEFAULT




     Section 8.01. Events of Default. The following events shall be “Events of
Default”:



          (a) The Borrowers shall fail to pay the principal of, or interest on, any Loan when
due (whether at stated maturity, upon acceleration or otherwise); or any Obligor shall
fail to make any other payment or deposit to be made by them hereunder or under any
Facility Document when due and such failure shall continue for two (2) Business Days;




          (b) Any representation or warranty made or deemed to be made by an Obligor (or any
of such Obligor’s officers) under or in connection with this Agreement or any other
Facility Document, or any written information, certificate, or report delivered pursuant
hereto or to any Facility Document shall prove to have been false or misleading in any
material respect when made or repeated or deemed to have been made, furnished or repeated
after the earlier of (i) such Obligor having actual knowledge thereof and (ii) written
notice of such default from any Lender or the Lender Agent;




          (c) Any Obligor (i) shall fail to comply with the requirements of any of Section
7.01(e), 7.01(k), 7.02(a), 7.02(h) through (l),
7.02(p), 7.03(a), 7.03(c), 7.03(i) or 7.03(j)
hereof or (ii) shall fail to perform or observe any term, covenant or agreement contained
in this Agreement or any other Facility Document (other than with respect to the making
of any payment or other breach under this Article VIII or as set forth in clause (i) of
this Section 8.01(c)) on its part to be performed or observed and any such
failure shall remain unremedied for ten (10) Business Days after the
earlier of (x) any Obligor having actual knowledge thereof and (y) written notice of
such default from the Lender Agent or any Lender to the Borrowers;




          (d) An Event of Bankruptcy shall have occurred with respect to any Obligor;




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          (e) Any Indebtedness arising under a Bilateral Facility or any other Indebtedness
(excluding Non-Recourse Debt) of ResCap or any of its Subsidiaries in excess of
$25,000,000, individually or in the aggregate, (i) is not paid when due or within any
applicable cure period set forth in any agreement or instrument relating to such
indebtedness, (ii) is declared due and payable before its normal or agreed maturity by
reason of default (however described) or (iii) is the subject of any other “event of
default” or other breach or failure to perform, in either case which remains after the
expiration of any applicable grace period under such agreement;




          (f) The failure by any Obligor to pay one or more final judgments for the payment of
money aggregating in excess of $25,000,000 rendered against such Person which are not,
within 30 days after entry thereof, bonded, discharged or stayed pending appeal, or are
not discharged within 30 days after the expiration of such stay;




          (g) This Agreement, any Note, any Facility Document or any Security Document (other
than the Intercreditor Agreement) shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid, binding
and enforceable obligation of any Obligor party thereto, or the Lien granted under the
Security Documents ceases to be in full force and effect or, in each case, any Obligor or
any other Person shall contest in any manner such effectiveness, validity, binding nature
or enforceability;




          (h) The Collateral Control Agent or the First Priority Collateral Agent (for the
benefit of the Lender Parties) does not, or ceases to, have a perfected first priority
security interest in the Collateral or any material part thereof (other than with respect
to Permitted Liens) other than as a result of a release of such security interest by the
First Priority Collateral Agent in accordance with the Facility Documents, and such
default continues unremedied for a period of one (1) Business Day after the earlier of
(i) either Borrower having actual knowledge thereof and (ii) written notice of such
default from the Lender Agent, the First Priority Collateral Agent or any Lender to the
Borrowers;




          (i) A Change of Control shall occur with respect to any Obligor, without the prior
written consent of each Lender, which consent shall not be unreasonably withheld;




          (j) ResCap shall fail to, on or before July 28, 2008, either pay in full and retire,
or otherwise cease to have the obligations to repay, its existing $1.75 billion bank term
loan facility described in the Exchange Offer OM;




          (k) (i) Any Person shall engage in any non-exempt “prohibited transaction” (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan;
(ii) any failure by any Pension Plan to satisfy the minimum funding standards (within the
meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such
Pension Plan, that has not been waived, shall exist with respect to any Pension Plan;
(iii) any Lien in favor of the PBGC or a Pension Plan shall
arise on the assets of any Obligor; (iv) a reportable event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Pension Plan, which reportable event or
commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Lender Agent, likely to result in the termination of such Pension Plan for purposes
of Title IV




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of ERISA; (v) any Pension Plan shall terminate for purposes of Title IV of ERISA in a
distress termination as defined in Section 4041 of ERISA; (vi) any Obligor shall, or in
the reasonable opinion of the Lender Agent is likely to, incur any liability in
connection with a withdrawal from, or the insolvency or reorganization of, a
Multiemployer Plan; (vii) if the assets of any Obligor are treated as “plan assets”
within the meaning of 29 C.F.R. 2510.3-101 as modified by Section 3(42) of ERISA; or
(viii) any other event or condition shall occur or exist with respect to a Pension Plan
or Multiemployer Plan; and in each case in clauses (i) through (viii)
above, such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect or a material adverse
effect on the Collateral, or any of the Lenders’ rights therein;




          (l) Any of the following shall occur: (i) the Intercreditor Agreement or any
provision thereof shall cease to be in full force and effect, or (ii) any Lien securing
or purporting to secure Second Priority Claims (as defined in the Intercreditor
Agreement) or Third Priority Claims (as defined in the Intercreditor Agreement) or any
other obligations of any Obligor to any party (other than a “First Priority Secured
Party” as defined in the Intercreditor Agreement) subject to the Intercreditor Agreement
shall, for any reason, cease to be subordinated to the Lien securing or purporting to
secure the First Priority Claims (as defined in the Intercreditor Agreement) in
accordance with the terms of the Intercreditor Agreement;




          (m) The Obligors shall fail to satisfy any of the Post-Closing Requirements in all
material respects.




     Section 8.02. Remedies.



          (a) Optional Acceleration. Upon the occurrence of an Event of Default (other than an Event of
Default described in Section 8.01(d)), the Lender Agent may (and shall if directed by the
Required Lenders) by written notice to the Borrowers, terminate the Facility, terminate the
Commitments, and declare all Loans and all other Obligations to be immediately due and payable.




          (b) Automatic Acceleration. Upon the occurrence of an Event of Default described in
Section 8.01(d), the Commitments shall automatically terminate and the Loans and all other
Obligations shall be immediately due and payable, without demand or notice of any kind.




          (c) Remedies. Upon any acceleration of the Loans pursuant to this
Section 8.02, the Lender Parties, in addition to all other rights and remedies under this
Agreement or otherwise, shall have all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall be cumulative. Each of the
Obligors agrees, upon the occurrence of an Event of Default and notice from the Lender Agent, to
assemble, at their expense, all of the Collateral that is in their possession (whether by return,
repossession, or otherwise) at a place designated by the Lender Agent. All costs incurred by the
Lender Parties in the collection of all Obligations, and the enforcement of their rights hereunder,
including attorneys’ fees and legal expenses, shall constitute Obligations and be paid out of the
Collateral. Without limiting the foregoing, upon the occurrence of an Event of Default and the
acceleration
of the Loans pursuant to this Section 8.02, the Lender Agent, the Collateral Control
Agent, the First Priority Collateral Agent and any Lender may, to the fullest extent permitted by




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applicable law, without notice, advertisement, hearing or process of law of any kind, (i) enter
upon any premises where any of the Collateral which is in the possession of any Obligor (whether by
return, repossession, or otherwise) may be located and take possession of and remove such
Collateral, (ii) sell any or all of such Collateral, free of all rights and claims of the Obligors
therein and thereto, at any public or private sale, and (iii) bid for and purchase any or all of
such Collateral at any such sale. Any such sale shall be conducted in a commercially reasonable
manner and in accordance with applicable law. Each of the Obligors hereby expressly waives, to the
fullest extent permitted by applicable law, any and all notices, advertisements, hearings or
process of law in connection with the exercise by the Lender Parties of any of their rights and
remedies upon the occurrence of an Event of Default. Each of the Lender Parties and the Obligors
shall have the right (but not the obligation) to bid for and purchase any or all Collateral at any
public or private sale. Each of the Obligors hereby agrees that in any sale of any of the
Collateral, the Lender Parties are hereby authorized to comply with any limitation or restriction
in connection with such sale as they may be advised by counsel is necessary in order to avoid any
violation of applicable law (including, without limitation, compliance with such procedures as may
restrict the number of prospective bidders and purchasers, require that such prospective bidders
and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to
Persons who will represent and agree that they are purchasing for their own account for investment
and not with a view to the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any Governmental Authority, and each of the
Obligors further agrees that such compliance shall not result in such sale being considered or
deemed not to have been made in a commercially reasonable manner. The Lender Parties shall not be
liable for any sale, private or public, conducted in accordance with this Section 8.02(c).
If an Event of Default occurs, and upon acceleration of the Loans hereunder, the Loans and all
other Obligations shall be immediately due and payable, and collections on the Collateral and
proceeds of sales and securitizations of Collateral will be used to pay the Obligations. At any
time after an Event of Default has occurred and is continuing, the Lender Agent may (and shall at
the direction of any Lender) appoint, at its own expense, one or more third parties to service all
or a portion of the Collateral by giving written notice thereof to the Obligors; provided
that any such appointment shall not conflict with any existing contractual servicing arrangements
with respect to the Collateral. Each Obligor agrees that it will cooperate with and assist any
such third-party servicer (including providing access to, and transferring, all records and
allowing the new servicer to use (to the extent legally permissible) all licenses, hardware or
software necessary or desirable to service the Collateral).




ARTICLE IX




ASSIGNMENT, PARTICIPATION




     Section 9.01. Assignments.



          (a) No Obligor may assign its rights, interests,
liabilities or obligations hereunder or under the other Facility Documents without the prior
written consent of each Lender.




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          (b) Any Lender may, with the prior written consents of the Lender Agent and (so long as no
Default exists and provided that such consent shall not be unreasonably withheld, delayed
or conditioned) the Borrowers, at any time assign and delegate to one or more commercial banks or
financial institution or other Eligible Assignees (an “Assignee”) all or any fraction of
such Lender’s rights under this Agreement (including all or a portion of its outstanding Loans and
Commitment); provided that:




               (i) the amount of the Commitments (which for this purpose includes Loans outstanding
thereunder) of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is delivered to the
Lender Agent) shall not be less than $10,000,000, unless (A) the Lender Agent and, so long
as no Event of Default has occurred and is continuing, the Borrowers otherwise consent (each
such consent not to be unreasonably withheld, conditioned or delayed); (B) such assignment
is an assignment of the entire remaining amount of the assigning Lender’s Commitments and
Loans at the time owing to it; (C) such assignment is an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender; or (D) such assignment
is to one or more Eligible Assignees managed by an Affiliate of such Eligible Assignee(s)
and the aggregate amount of such assignments is not less than $10,000,000;



               (ii) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with respect to the
Loans, and/or the Commitments assigned; and



               (iii) the assigning Lender and the Assignee shall have executed and delivered to the
Borrowers and the Lender Agent, an Assignment and Acceptance, together with any documents
required to be delivered thereunder, together with a processing and recordation fee of
$3,500 to the Lender Agent (which fee may be waived or reduced by the Lender Agent in its
sole discretion) and, if such Assignee is not then a Lender, administrative details
information with respect to such Assignee.



          (c) Upon acceptance thereof by the Lender Agent, from and after the effective date specified
in each Assignment and Acceptance, (i) the Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and (ii) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, subject to Section 13.11, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto, but shall continue to be entitled to the benefits of any
provisions of this Agreement that by their terms survive the termination of this Agreement). If
the consent of the Borrowers to an assignment is required hereunder, each Borrower shall be deemed
to have given its consent ten (10) days after the date notice thereof has been delivered by the
assigning Lender unless such consent is expressly refused by a Borrower prior to such tenth day.




          (d) The Lender Agent shall record each assignment made in accordance with this Section in the
Register pursuant to Section 2.02(b) and periodically give the Borrowers notice of such
assignments. The Register shall be available for inspection by the Borrowers and




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any Lender, as to its Commitment and outstanding Loans only, at any reasonable time and from time
to time upon reasonable prior notice.




          (e) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          (f) Any attempted assignment and delegation not made in accordance with this Section
9.01 shall be null and void.




     Section 9.02. Evidence of Assignment. Within five (5) Business Days after
effectiveness of any assignment, the Borrowers shall execute and deliver to the Lender Agent (a)
for delivery to the Assignee, a new Note or, if the Assignee was already a holder of a Note
immediately prior to such effectiveness, a replacement Note in the appropriate principal amount
based on such Assignee’s Commitments after giving effect to such assignment; and (b) if the
assigning Lender still holds any Commitment, for delivery to the assigning Lender, a replacement
Note in the appropriate principal amount based on such Assignee’s Commitments after giving effect
to such assignment. Each such Note shall be dated the effective date of such assignment.



     Section 9.03. Rights of Assignee, Evidence of Assignment. From and after the date on
which the conditions described in Section 9.01(b) have been met, the assigning Lender shall
be released from its obligations hereunder to the extent of the rights and obligations hereunder
that have been assigned pursuant to the Assignment and Acceptance. Accrued interest on that part
of the predecessor Note being assigned shall be paid as provided in the Assignment and Acceptance.
Accrued interest and fees on that part of the predecessor Note not being assigned shall be paid to
the assigning Lender. Accrued interest and accrued fees shall be paid at the same time or times
provided in the predecessor Note and in this Agreement.



     Section 9.04. Participations.



          (a) Any Lender may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to such Lender, any
Note held by any Lender, the obligations to make Revolving Loans of such Lender or any other
interest of such Lender hereunder (any Person purchasing any such participating interest being
herein called a “Participant”) provided that so long as no Default exists any such
participation (other than a participation to General Motors Corporation, Cerberus Capital
Management, L.P., or any of their Affiliates) shall be subject to the consent of each Borrower
(such consent not to be unreasonably withheld, delayed or conditioned). In the event of a sale by
any Lender of a participating interest to a Participant, (a) such Lender shall remain the holder of
its Note for all purposes of this Agreement, (b) the Obligors shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations hereunder and (c)
all amounts payable by the Obligors shall be determined as if such Lender had not sold such
participation and shall be paid directly to such Lender. No Participant shall have any direct
voting rights hereunder. The Obligors agree that if amounts outstanding under this Agreement and
the Notes are due and




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payable (as a result of acceleration or otherwise), each Participant shall be
deemed to have the right of setoff in respect of its participating interest in amounts owing under
this Agreement and any Note to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or such Note; provided that if any
Lender or any Participant shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or offset or otherwise) on account of principal of or
interest on any Loan in excess of its pro rata share of payments (after giving
effect to all participations hereunder) and other recoveries obtained by such Lender and the
Participants on account of principal of and interest on the Loans then held by them, such Lender or
the applicable Participant (as the case may be) shall purchase from the other party or parties such
participations in the Loans held by them as shall be necessary to cause such purchasing Person to
share the excess payment or other recovery ratably with each of them; provided that if all
or any portion of the excess payment or other recovery is thereafter recovered from such purchasing
Person, the purchase shall be rescinded and the purchase price restored to the extent of such
recovery. Each Obligor also agrees that each Participant shall be entitled to the benefits of
Sections 2.07(b), 2.07(c) and 3.02 as if it were a Lender and had acquired
its interest by assignment (provided that such Participant shall have complied with the
requirements of said Section as though it were a Lender that acquired its interest by assignment).




          (b) In the event that a Lender sells participations in any Loan, Note or the obligation to
make Loans or any interest of such Lender, such Lender shall maintain a register on which it enters
the name of all participants in the Loan or Note held by it and the principal amount (and interest
thereon) of the portion of the Loan or Note which is the subject of the participation (the
“Participant Register”). A Loan or Note may be participated in whole or in part only by
registration of such participation on the Participant Register (and each registered note shall
expressly so provide). Any participation of such Loan or Note may be effected only by the
registration of such participation on the Participant Register. The Participant Register shall be
available for inspection by the Borrowers at any reasonable time and from time to time upon
reasonable prior notice




ARTICLE X




INDEMNIFICATION




     Section 10.01. Indemnities by the Borrowers. Without limiting any other rights which
any such Person may have hereunder or under applicable law, and in consideration of the execution
and delivery of this Agreement and the Facility evidenced by the Facility Documents, the Borrowers
hereby agree to jointly and severally indemnify the Lenders, the Lender Agent, the First Priority
Collateral Agent, the Collateral Control Agent and their respective Affiliates, successors,
permitted transferees and assigns and all officers, directors, shareholders, controlling persons,
employees and agents of any of the foregoing (each an “Indemnified Party”), forthwith
on demand, from and against any and all damages, losses, claims, liabilities, obligations
penalties, causes of action, demands, judgments, suits and related costs and expenses, including
reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to
as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a
result of (a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan; (b) the entering into and performance of any Facility
Document



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by any of the Indemnified Parties; (c) the Facility Documents, the Loans and the extension
of the Commitments, the failure of any Obligor to comply with the terms of the Facility Documents
or Requirements of Law, the inaccuracy of any representation or warranty of any Obligor set forth
in the Facility Documents or in a certificate, instrument or document delivered in connection
therewith, and the use by any Obligor of the proceeds of any Loans; (d) any investigation,
litigation or proceeding related to any acquisition or proposed acquisition by any Obligor or any
Subsidiary thereof of all or any portion of the capital stock or assets of any Person, whether or
not an Indemnified Party is party thereto; and (e) any transaction contemplated under the Facility
Documents; excluding, however, (i) Indemnified Amounts to the extent a court of
competent jurisdiction in a final non-appealable judgment determines that they resulted from gross
negligence, bad faith or willful misconduct on the part of such Indemnified Party; (ii) any lost
profits (other than in connection with Breakage Costs) or indirect, exemplary, punitive or
consequential damages of any Indemnified Party; and (iii) any and all present or future taxes,
fees, levies, imposts, deductions, duties, withholdings, assessments or other charges imposed by
any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto, which shall be governed by the terms of Section 3.02. Without limiting the
foregoing, in any suit, proceeding or action brought by any Indemnified Party in connection with
any Collateral for any sum owing thereunder, or to enforce any provisions of any Collateral, the
Borrowers will save, indemnify and hold the applicable Indemnified Party harmless from and against
all expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or
reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a
breach by either Borrower of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such account debtor or obligor or its
successors from the Borrowers. The Borrowers also agree to reimburse the Indemnified Parties as
and when billed by such party for all out-of-pocket costs and expenses (including reasonable
attorneys’ fees and expenses) incurred in connection with the enforcement or the preservation of
such party’s rights under this Agreement, the Notes, any other Facility Document, any Security
Document or any transaction contemplated hereby or thereby, including without limitation the fees
and disbursements of its counsel. The Borrowers hereby acknowledge that, notwithstanding the fact
that the Notes are secured by the Collateral, the obligation of the Borrowers under the Notes are
recourse obligations of the Borrowers. Under no circumstances shall any Indemnified Party be
liable to the Borrowers for any lost profits (other than in connection with Breakage Costs) or
indirect, exemplary, punitive or consequential damages.




     Section 10.02. General Provisions. If for any reason the indemnification provided
above in Section 10.01 (and subject to the limitations on indemnification contained
therein) is unavailable to an Indemnified Party or is insufficient to hold an Indemnified Party
harmless on the basis of public policy, then the Borrowers shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received by such Indemnified
Party on the one
hand and the Borrowers on the other hand but also the relative fault of such Indemnified Party
as well as any other relevant equitable considerations.



     The provisions of this Article X shall survive the termination or assignment of this
Agreement, the payment of the Obligations and the resignation or removal of any of the Indemnified
Parties.



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ARTICLE XI




GUARANTEE




     Section 11.01. Unconditional Guarantee. To induce the Lenders to enter into this
Agreement, each of the Guarantors jointly and severally, absolutely, unconditionally and
irrevocably guarantees to the Lender Parties and their successors and permitted assigns (a) the
prompt and complete payment and performance when due (whether at stated maturity, or otherwise by
required prepayment, declaration, acceleration, demand or otherwise), of the Obligations now or
hereafter owing; and (b) all renewals, rearrangements, increases, extensions for any period,
substitutions, modification, amendments or supplements in whole or in part of any of the Facility
Documents or obligations (in each case including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. §362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy
Code, 11 U.S.C. §502(b) and §506(b)).



     Section 11.02. Nature of Guarantee. Each Guarantor’s obligations hereunder (a) are
continuing, absolute, unconditional and irrevocable; (b) shall remain in full force and effect
until all Obligations are paid in full in cash and the Commitments have terminated or expired
(unless this Guarantee is reinstated pursuant to the terms of this Article XI); and (c)
shall not be affected by (i) the existence, validity, enforceability, perfection or extent of any
collateral therefor, the validity, regularity or enforceability of the Facility Documents, (ii) the
absence of any action to enforce any Obligor’s obligations under any of the Facility Documents or
to otherwise assert any claim or enforce any right of any Lender Party under the Facility Documents
or in or to the Collateral, (iii) any waiver or consent by any Obligor with respect to any
provisions of this Agreement or any other Facility Document, (iv) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations, or any other
extension, increase, compromise or renewal of any Obligation, (v) any reduction, limitation,
impairment or termination of any Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to (and each Guarantor
hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence affecting, any Obligations, (vi)
any amendment to, extension, variance, alteration, rescission, waiver, increase, or other
modification of, or any consent to departure from, any of the terms of this Agreement or any other
Facility Document including, without limitation, any increase or reduction to the rate of interest
on all or any of the Obligations, (vii) any addition, exchange, release, surrender or
non-perfection of any Collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty or any other security document, held by a Lender
Party, (viii) the insolvency of any other Obligor, or (ix) any other circumstance relating to the
Obligations that might otherwise
constitute a legal or equitable discharge of or defense to this Guarantee. Each of the
Guaranties under this Article XI is a guarantee of payment and not a guarantee of
collection, and each Guarantor jointly and severally agrees that any Lender Party may resort to
such Guarantor for payment of any of the Obligations owed to it whether or not such Lender Party
shall have resorted to any collateral therefor or shall have proceeded against any Person
principally or secondarily liable for any of the Obligations, including any Obligor, and whether or
not such Lender Party has pursued any other remedy available to it. No Lender Party shall be
obligated to



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file any claim relating to the Obligations in the event that any Obligor becomes
subject to a bankruptcy, reorganization or similar proceeding, and the failure of the applicable
Lender Party to so file shall not affect any obligation of a Guarantor hereunder. In the event
that any payment to the Lender Parties in respect of any Obligations owed to them is rescinded or
must otherwise be returned for any reason whatsoever, the Guarantors shall remain jointly and
severally liable hereunder with respect to such Obligations as if such payment had not been made
and the Guarantee shall be reinstated, if applicable. At any time and from time to time, upon the
written request of any Lender Party, and at the sole expense of the Guarantors, the Guarantors will
furnish such information regarding the financial well-being of the Guarantors as may be reasonably
requested by such Lender Party.




     Section 11.03. Certain Agreements; Waivers of Certain Notices. Each Guarantor
authorizes each Lender Party, without notice or demand and without affecting its liability
hereunder, from time to time, to forbear, indulge or take other action or inaction in respect of
this Guarantee or the Obligations, or to exercise or not exercise any right or remedy hereunder or
otherwise with respect to the Obligations. Each Guarantor waives (a) promptness, diligence,
presentment, notice of acceptance and any other notice with respect to any of the Obligations and
this Article XI and any requirement that any Lender Party protect, secure, perfect or
insure any security interest or Lien, or any property subject thereto, or exhaust any right or take
any action against the Borrower, any Guarantor or any other Person (including any other guarantor)
or any collateral securing the Obligations; (b) all rights that it may have now or in the future
under any statute, or at common law, or in law or equity, or otherwise, to the extent allowed under
Requirements of Law, to compel any Lender Party to marshall assets or to proceed in respect of
Obligations guaranteed hereunder or under any Facility Document against any Borrower or any other
Guarantor, any other party or against any security for the payment and performance of the
Obligations before proceeding against, or as a condition to proceeding against, such Guarantor; and
(c) each and every right to which it may be entitled by virtue of the suretyship under Requirements
of Law. It is agreed among each Guarantor and the Lender Parties that the foregoing waivers and
the other waivers contained in this Agreement are of the essence of the transaction contemplated by
this Agreement (including Article XI) and the Facility Documents and that, but for the
provisions of this Section 11.03 and such waivers, the Lender Parties would decline to
enter into this Agreement.



     Section 11.04. Waiver of Subrogation. Until two years and one day after the
Obligations are repaid in full in cash and the Commitments have expired or terminated, each
Guarantor hereby expressly and irrevocably waives any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all
defenses available to a surety, guarantor or accommodation co-obligor. If any amounts are paid to
the Guarantors in violation of the foregoing limitation, then such amounts shall be held in trust
for the benefit of the Lender Parties and shall forthwith be paid to the Lender Agent for the
account of the Lender Parties to reduce the amount of outstanding Obligations, whether matured or
unmatured. Subject to the foregoing, upon payment of any of the Obligations, the Guarantors shall
be subrogated to the rights of the Lender Parties against other Obligors with respect to such
Obligations.



     Section 11.05. Taxes. All payments by the Guarantors hereunder will be subject to
Section 3.02.



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     Section 11.06. Payments. Each Guarantor hereby jointly and severally guarantees that
the Obligations will be paid to each Lender Party without set-off or counterclaim, in lawful
currency of the United States of America at the offices of each Lender Party specified by each
Lender Party for such payment. The obligations of the Guarantors hereunder shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any
currency except to the extent to which such tender or recovery shall result in the effective
receipt by each applicable Lender Party of the full amount of the currency or currencies owing
under this Guarantee, and the Guarantors shall jointly and severally indemnify each applicable
Lender Party (as an alternative or additional cause of action) for the amount (if any) by which
such effective receipt shall fall short of the full amount of currency or currencies owing under
this Guarantee and such obligation to indemnify shall not be affected by judgment being obtained
for any other sums due hereunder.



     Section 11.07. Severability of Article XI. Wherever possible, each provision of this
Article XI will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Article XI is prohibited by or invalid under such law,
such provision will be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Article
XI. Consistent with the foregoing, and notwithstanding any other provision of this Article
XI to the contrary, in the event that any action or proceeding is brought in whatever form and
in whatever forum seeking to invalidate any Guarantor’s obligations under this Article XI
under any fraudulent conveyance, fraudulent transfer theory, or similar avoidance theory, whether
under state or federal law, such Guarantor (the “Affected Guarantor”), automatically and
without any further action being required of such Affected Guarantor or any Lender Party, shall be
liable under this Article XI only for an amount equal to the maximum amount of liability
that could have been incurred under applicable law by such Affected Guarantor under any guaranty of
the Obligations (or any portion thereof) at the time of the execution and delivery of this
Article XI (or, if such date is determined not to be the appropriate date for determining
the enforceability of such Affected Guarantor’s obligations hereunder for fraudulent conveyance or
transfer (or similar avoidance) purposes, on the date determined to be so appropriate) without
rendering such a hypothetical guaranty voidable under applicable law relating to fraudulent
conveyance, fraudulent transfer, or any other grounds for avoidance (such highest amount determined
hereunder being any such Affected Guarantor’s “Maximum Guaranty Amount”), and not for any
greater amount, as if the stated amount of this Article XI as to such Affected Guarantor
had instead been the Maximum Guaranty Amount. This Section 11.07 is intended solely to
preserve the rights of the Lender Parties under this Article XI to the maximum extent not
subject to avoidance under applicable law, and neither any Affected Guarantor nor any other person
or entity shall have any right or claim under this Section 11.07 with respect to the
limitation described in this Article XI, except to the extent necessary so that the
obligations of any Affected Guarantor under this Article XI
shall not be rendered voidable under applicable law. Without limiting the generality of the
foregoing, the determination of a Maximum Guaranty Amount for any Affected Guarantor pursuant to
the provisions of the second preceding sentence of this Section 11.07 shall not in any
manner reduce or otherwise affect the obligations of any other Guarantor (including any other
Affected Guarantor) under the provisions of this Article XI.



     Section 11.08. Acceleration of Guarantee. Each Guarantor agrees that, in the event of
the dissolution or insolvency of any Obligor, or the inability or failure of any Obligor to pay
debts as



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they become due, or an assignment by any Obligor for the benefit of creditors, or the
commencement of any case or proceeding in respect of any Obligor under any bankruptcy, insolvency
or similar laws, and if such event shall occur at a time when any of the Obligations of any Obligor
may not then be due and payable, such Guarantor will pay to the Lender Agent for the account of the
Lender Parties forthwith the full amount which would be payable hereunder by such Guarantor if all
such Obligations were then due and payable.




     Section 11.09. Election of Remedies. Except as otherwise provided in this Agreement,
if any Lender Party proceeds to realize its benefits under any Facility Documents giving any Lender
or the First Priority Collateral Agent a Lien upon any Collateral, either by judicial foreclosure
or by non-judicial sale or enforcement, such Lender Party may, at its option acting in its sole
discretion, determine which remedies or rights it may pursue without affecting any of its rights
and remedies under this Article XI. If, in the exercise of any of its rights and remedies,
any Lender Party shall forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against any Obligor or any other Person, whether because of any Requirements of
Law pertaining to “election of remedies” or the like, each Guarantor hereby consents to such action
and waives any claim based upon such action, even if such action by the applicable Lender or First
Priority Collateral Agent shall result in a full or partial loss of any rights of subrogation that
such Guarantor might otherwise have had but for such action by such Lender Party. Any election of
remedies that results in the denial or impairment of the right of any Lender Party to seek a
deficiency judgment against any other Obligor shall not impair any Guarantor’s obligation to pay
the full amount of the Obligations under this Article XI.



     Section 11.10. Benefit to Guarantor. Each Guarantor represents and agrees that (a)
its business is integrally related to the business of the Borrowers and that it is in the best
interests of the Guarantor to execute this Agreement inasmuch as such Guarantor will derive
substantial direct and indirect benefits from the Loans made from time to time to the Borrowers;
(b) such Guarantor is willing to guarantee the Obligations; and (c) such Guarantor agrees that the
Lender Parties are relying on this representation in agreeing to make Loans to the Borrower.



ARTICLE XII




LENDER AGENT




     Section 12.01. Appointment and Authorization. Each Lender hereby irrevocably (subject
to Section 12.09) appoints and designates GMAC LLC as the Lender Agent under and for
purposes of the Facility Documents and hereby authorizes the Lender Agent to take such action on
its behalf under the provisions of this Agreement and each other Facility Document and to exercise
such powers and perform such duties as are expressly delegated to or required of
it by the terms of this Agreement or any other Facility Document, together with such powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Facility Document, the Lender Agent shall not have any
duty or responsibility except those expressly set forth herein, nor shall the Lender Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Facility Document or otherwise exist against the Lender Agent.



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     Section 12.02. Delegation of Duties. The Lender Agent may execute any of its duties
under this Agreement or any other Facility Document by or through agents, employees or attorneys in
fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties.
The Lender Agent shall not be responsible for the negligence or misconduct of any agent or attorney
in fact that it selects with reasonable care.



     Section 12.03. Liability of Lender Agent. None of the Lender Agent nor any of its
directors, officers, employees or agents shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other Facility Document or
the transactions contemplated hereby (except for its own gross negligence or willful misconduct),
or (b) be responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Obligors or any Subsidiary or Affiliate of the Obligors, or
any officer thereof, contained in this Agreement or in any other Facility Document, or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Lender Agent under or in connection with, this Agreement or any other Facility Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Facility Document, or for any failure of the Obligors or any other party to any Facility Document
to perform its obligations hereunder or thereunder. The Lender Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Facility Document, or to
inspect the properties, books or records of the Obligors or any of the Obligors’ Subsidiaries or
Affiliates.



     Section 12.04. Reliance by Lender Agent. The Lender Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, email, telex or telephone message, statement
or other document or conversation reasonably believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Obligors), independent accountants and other experts selected by
the Lender Agent. The Lender Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Facility Document unless it shall first receive such
advice or concurrence of each Lender as it deems appropriate and, if it so requests, confirmation
from the Lenders of their obligation to indemnify the Lender Agent against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take any such action.
The Lender Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Facility Document in accordance with a request or consent of the
Required Lenders or, to the extent expressly required by Section 13.01 or any other
provision of the Facility Documents, all Lenders.



     Section 12.05. Notice of Default. The Lender Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Borrowing Base Deficiency, unless the
Lender Agent shall have received written notice from a Lender or the Borrowers referring to this
Agreement, describing such Default and stating that such notice is a “notice of default” or
describing such Borrowing Base Deficiency. The Lender Agent will notify the Lenders of its receipt
of any such notice. The Lender Agent shall take such action with respect to such Default as may be
requested by the Required Lenders in accordance with Section 8.02; provided that,
unless and until the Lender Agent has received any such request, the Lender Agent may (but



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shall
not be obligated to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable or in the best interest of the Lenders (except to the extent
that this Agreement expressly requires that such action be taken, or not taken, only with the
consent of the Required Lenders or all Lenders).




     Section 12.06. Credit Decision. Each Lender acknowledges that the Lender Agent has
not made any representation or warranty to it, and that no act by the Lender Agent hereafter taken,
including any review of the affairs of the Obligors and their Subsidiaries, shall be deemed to
constitute any representation or warranty by the Lender Agent to any Lender. Each Lender
represents to the Lender Agent that it has, independently and without reliance upon the Lender
Agent and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Obligors, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers hereunder. Each Lender also represents that it
will, independently and without reliance upon the Lender Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Facility
Documents, and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and creditworthiness of
the Obligors. Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Lender Agent, the Lender Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial or other condition or creditworthiness of the Borrowers
that may come into the possession of the Lender Agent.



     Section 12.07. Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand the Lender Agent and its directors,
officers, employees and agents (to the extent not reimbursed by or on behalf of the Obligors and
without limiting the obligation of the Obligors to do so), pro rata based on their
Pro Rata Shares, from and against any and all Indemnified Amounts; provided that, no Lender
shall be liable for any payment to any such Person of any portion of the Indemnified Amounts
resulting from such Person’s gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Lender Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including attorney costs) incurred by the Lender Agent in
connection with the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Facility Document, or any
document contemplated by or referred to herein, to the extent that the Lender Agent is not
reimbursed for such expenses by or on behalf of the Obligors. The undertaking in this Section
shall survive
repayment of the Loans, termination of the Commitments, cancellation of the Notes, any
foreclosure under, or modification, release or discharge of, any or all of the Collateral
Documents, termination of this Agreement and the resignation or replacement of the Lender Agent.



     Section 12.08. Lender Agent in Individual Capacity. The Lender Agent and its
Affiliates may make loans to, acquire equity interests in and generally engage in any kind of
business with the Obligors and their respective Subsidiaries and Affiliates as though the Lender
Agent were not



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44









 







the Lender Agent hereunder and without notice to or consent of the Lenders. Each of
the Lenders acknowledges that, pursuant to such activities, the Lender Agent or its Affiliates may
receive information regarding the Obligors or their respective Affiliates (including information
that may be subject to confidentiality obligations in favor of the Obligors or their Affiliates)
and acknowledges that the Lender Agent shall be under no obligation to provide such information to
them. With respect to their Loans (if any), the Lender Agent and its Affiliates shall have the
same rights and powers under this Agreement as any other Lender and may exercise the same as though
the Lender Agent were not the Lender Agent, and the terms “Lender” and “Lenders” include the Lender
Agent and its Affiliates, to the extent applicable, in their individual capacities.




     Section 12.09. Successor Lender Agent. The Lender Agent may resign as Lender Agent
upon 30 days’ notice to the Lenders. If the Lender Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the resignation of the Lender Agent,
the Lender Agent may appoint, after consulting with (but without the consent of) the Lenders, a
successor agent which shall be a Lender or a commercial banking institution organized under the
laws of the United States (or any State thereof) or a United States branch or agency of a
commercial banking institution, and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall
succeed to all the rights, powers and duties of the retiring Lender Agent and the term “Lender
Agent” shall mean such successor agent, and the retiring Lender Agent’s appointment, powers and
duties as Lender Agent shall be terminated. After any retiring Lender Agent’s resignation
hereunder as Lender Agent, the provisions of this Article XII and Article X shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was Lender Agent
under this Agreement. If no successor agent has accepted appointment as Lender Agent by the date
that is 30 days following a retiring Lender Agent’s notice of resignation, the retiring Lender
Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Lender Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.



     Section 12.10. Funding Reliance. Unless the Lender Agent shall have been notified in
writing by any Lender by 3:00 p.m. (New York City time) on the Business Day prior to a Funding Date
that such Lender will not make available the amount that would constitute its Pro Rata Share of the
requested Loans on the date specified therefor, the Lender Agent may assume that such Lender has
made such amount available to the Lender Agent and, in reliance upon such assumption, may make
available to the Borrowers a corresponding amount; provided that the Lender Agent shall be
under no obligation whatsoever to advance funds to the Borrowers on behalf of any Lender or to the
Lenders on behalf of the Borrowers. However, if in its sole and
absolute discretion the Lender Agent does so advance funds, the applicable Lender and the
Borrowers jointly and severally (in the case of an advance to the Borrowers on behalf of a Lender)
or any Lender receiving payments and the Borrowers (in the case of an advance to a Lender on behalf
of the Borrowers) agree to repay such amount to the Lender Agent forthwith on demand, together with
interest thereon at the interest rate applicable to Loans comprising such borrowing for each day
from the date the Lender Agent made such funds available to the Borrowers to the date such amount
is repaid to the Lender Agent. Nothing set forth in this



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section shall relieve any Lender of any
obligation it may have to make any Loan, or any Obligor to make any payment, hereunder.




     Section 12.11. Security Matters; Release of Collateral.



          (a) Each Lender and other
Lender Party (by their acceptance of the benefits of any Collateral) acknowledges and agrees that
the Lender Agent, the Collateral Control Agent and/or the First Priority Collateral Agent have
entered into the Security Documents (including, without limitation, the Intercreditor Agreement) on
behalf of the Lender Parties, and the Lender Parties hereby agree to be bound by the terms of such
Security Documents, acknowledge receipt of copies of such Security Documents and consent to the
rights, powers, remedies, indemnities and exculpations given to the Lender Agent, the First
Priority Collateral Agent and/or the Collateral Control Agent thereunder. All rights, powers and
remedies available to the Lender Agent, the First Priority Collateral Agent, the Collateral Control
Agent and the Lender Parties with respect to the Collateral, or otherwise pursuant to the Security
Documents, shall be subject to the provisions of such Security Documents. In the event of any
conflict or inconsistency between the terms and provisions of this Agreement and the terms and
provisions of such Security Documents, the terms and provisions of such Security Documents shall
govern and control except that this Agreement shall govern and control the rights, powers, duties,
immunities and indemnities of the Lender Agent. Each Lender and other Lender Party (by their
acceptance of the benefits of any Collateral) hereby authorizes the Lender Agent, the Collateral
Control Agent and/or the First Priority Collateral Agent to release (or authorize the release of)
any collateral that is permitted to be sold or released pursuant to the terms of the Facility
Documents. Each Lender hereby authorizes the First Priority Collateral Agent and the Collateral
Control Agent to execute and deliver to the Borrowers, at the Borrowers’ joint and several cost and
expense, any and all releases of Liens, termination statements, assignments or other documents
reasonably requested by the Borrowers in connection with any sale or other disposition of property
to the extent such sale or other disposition is permitted by the terms of this Agreement or is
otherwise authorized by the terms of the Facility Documents.




          (b) No Collateral shall be released from the security interest created by the Security
Agreement without the prior written consent of the Lender Agent unless:




               (i) If Financing Assets are sold or financed in the ordinary course of an Obligor’s
business pursuant to a Bilateral Facility, the Lien on such Asset shall be released
automatically concurrently with sale or financing;



               (ii) If Financing Assets with a Carrying Value of less than $100,000,000 are sold or
financed in the ordinary course of an Obligor’s business, the Lien on such Asset shall be
released automatically concurrently with sale or financing; or



               (iii) If an Agency Asset is sold in the ordinary course of an Obligor’s trading
activities to a Person that is not an Affiliate of an Obligor, such Agency Asset shall be
automatically released concurrently with such sale.



     Any such release shall not become effective unless an Obligor shall have directed the First
Priority Collateral Agent to release the applicable Collateral by delivering a Collateral



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Release
Certificate to the First Priority Collateral Agent. In connection with any release effectuated
pursuant to this Section 12.11 hereof, the First Priority Collateral Agent shall be
entitled to conclusively rely, and shall be fully protected in relying, upon any such Collateral
Release Certificate, and shall incur no liability to any Person in connection with acting in
reliance thereon.




ARTICLE XIII




MISCELLANEOUS




     Section 13.01. Amendments, Etc. The provisions of each Facility Document (other than
the Fee Letter, which shall be modified only in accordance with its terms) may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in writing and consented
to by the Borrowers and the Required Lenders; provided that no such amendment, modification
or waiver shall:



          (a) modify Section 3.01(f), Section 3.01(g) (as it relates to
sharing of payments) or this Section, in each case, without the consent of all Lenders;




          (b) increase the aggregate amount of any Loans required to be made by a Lender
pursuant to its Commitments, extend the Commitment Termination Date or extend the Loan
Repayment Date, in each case without the consent of each Lender (it being agreed,
however, that any vote to rescind any acceleration made pursuant to Section 8.02
of amounts owing with respect to the Loans and other Obligations shall only require the
vote of the Required Lenders);




          (c) reduce the principal amount of or reduce the rate of interest on any Lender’s
Loans, reduce any fees described in Section 2.06 payable to any Lender or extend
the date on which principal, interest or fees are payable in respect of such Lender’s
Loans, in each case without the consent of such Lender (provided that, the vote
of Required Lenders shall be sufficient to waive the payment, or reduce the increased
portion, of interest accruing under Section 3.01(b));




          (d) reduce the percentage set forth in the definition of “Required Lenders” or
modify any requirement hereunder that any particular action be taken by all Lenders
without the consent of all Lenders;




          (e) except as otherwise expressly permitted under a Facility Document, release (i)
either Borrower from its Obligations under the Facility Documents or any Guarantor from
its obligations under a Guaranty or (ii) all or substantially all of the Collateral under
the Facility Documents, in each case without the consent of all Lenders; or




          (f) affect adversely the interests, rights, protections or obligations of the Lender
Agent (in its capacity as the Lender Agent), the First Priority Collateral Agent (in its
capacity as the First Priority Collateral Agent) or the Collateral Control Agent (in its
capacity as the Collateral Control Agent) unless consented to by the Lender Agent, the
First Priority Collateral Agent or the Collateral Control Agent, respectively.




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47









 








     Section 13.02. Notices, Etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including facsimile communication
and electronic mail) and shall be personally delivered or sent by certified mail or overnight air
courier, postage prepaid, or by facsimile, to the intended party at the address or facsimile number
of such party set forth opposite its name on Schedule 13.02 or at such other address or
facsimile number as shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective, (i) if personally delivered, when
received, (ii) if sent by overnight air courier, the next Business Day after delivery to the
related air courier service, if delivery is guaranteed as of the next Business Day, (iii) if sent
by certified mail, three Business Days after having been deposited in the mail, postage prepaid,
and (iv) if transmitted by facsimile, when sent, receipt confirmed by telephone or electronic
means, if sent during business hours (if sent after business hours, then on the next Business Day)
except that notices and communications pursuant to Article I shall not be effective until
received.



     Section 13.03. No Waiver; Remedies. No failure on the part of any Lender Party to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. No notice to or demand on any Obligor in any case
shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval
by any Lender Party under any Facility Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies provided by law.



     Section 13.04. Binding Effect; Assignability. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns,
provided, however, that nothing in the foregoing shall be deemed to authorize any
assignment not permitted in Section 9.01.



     Section 13.05. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES (BUT WITH REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT). EACH PARTY HERETO HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH PARTY HERETO HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY DOCUMENT DELIVERED PURSUANT HERETO BY THE



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48









 







MAILING OF A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO ITS RESPECTIVE ADDRESS SPECIFIED AT THE TIME FOR NOTICES UNDER THIS AGREEMENT OR TO
ANY OTHER ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN OR ELECTRONIC NOTICE TO THE OTHER PARTIES.
THE FOREGOING SHALL NOT LIMIT THE ABILITY OF ANY PARTY HERETO TO BRING SUIT IN THE COURTS OF ANY
JURISDICTION.




     EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY WITH
RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.



     Section 13.06. Entire Agreement. This Agreement and the Facility Documents embody the
entire agreement and understanding of the parties hereto and supersede any and all prior
agreements, arrangements and understanding relating to the matters provided for herein.



     Section 13.07. Acknowledgment. Each Obligor hereby acknowledges that:



          (a) it has been advised by counsel in the negotiation, execution and deliver of this
Agreement, the Notes and the other Facility Documents to which it is a party;




          (b) no Lender Party has a fiduciary relationship to it, and the relationship between
it and each Lender is solely that of debtor and creditor; and




          (c) no joint venture exists among or between it and any Lender Party.




     Section 13.08. Captions and Cross References. The various captions (including,
without limitation, the table of contents) in this Agreement are included for convenience only and
shall not affect the meaning or interpretation of any provision of this Agreement. References in
this Agreement to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be.



     Section 13.09. Execution in Counterpart; Effectiveness. This Agreement may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original (whether such counterpart is
originally executed or an electronic copy of an original and each party hereto expressly waives its
rights to receive originally executed documents other than with respect to any Note) and all of
which when taken together shall constitute one and the same agreement. This Agreement shall become
effective when counterparts hereof executed on behalf of the parties hereto shall have been
received by the Lender Agent. The parties hereto agree that delivery of a counterpart of a
signature page to this Agreement and each other Facility Document (except for any Note) by
facsimile or electronic transmission shall be effective as delivery of an original executed
counterpart of this Agreement or such other Loan Document.



     Section 13.10. Confidentiality. Each party hereto agrees that it will hold any
confidential information received from the other party pursuant to this Agreement or any other
Facility Document, it being understood that this Agreement is confidential information of the
Lender, in



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49









 







strict confidence, as long as such information remains confidential, except for
disclosure to (a) its Affiliates; (b) its legal counsel, accountants, and other professional
advisors or to a permitted assignee or participant; (c) regulatory officials or Governmental
Authorities; (d) any Person as requested pursuant to or as required by law, regulation, or legal
process; (e) any Person in connection with any legal proceeding to it is a party; (f) rating
agencies if requested or required by such agencies in connection with a rating; (g) the Lender
Agent; (h) any pledgee referred to in Section 9.01(e) or any prospective or actual
transferee or participant in connection with any contemplated transfer or participation of any of
the Notes, Loans or Commitments or any interest therein by such Lender, provided that such
prospective transferee agrees to be bound by the confidentiality provisions contained in this
Section; and (i) any Person as permitted pursuant to the terms of this Agreement and the other
Facility Documents; provided, however, that no Lender Party shall be liable for any
disclosure of confidential information to the extent that such Lender Party followed its customary
procedures and practices with respect to confidential information. This Section 13.10
shall survive termination of this Agreement. Notwithstanding anything to the contrary in this
Agreement, the tax treatment and the tax structure of the transactions contemplated under this
Agreement shall not be treated as confidential information.




     Section 13.11. Survival. The obligations of the Obligors under Sections 3.02
and 13.10 and Article X hereof, and the obligations of the Lenders under
Section 12.07, shall survive the repayment in full in cash of the Obligations and the
termination of this Agreement. In addition, each representation and warranty made, or deemed to be
made by a request for a borrowing, herein or pursuant hereto shall survive the making of such
representation and warranty, and the Lenders shall not be deemed to have waived, by reason of
making any Loan, any Default that may arise by reason of such representation or warranty proving to
have been false or misleading, notwithstanding that the Lenders may have had notice or knowledge or
reason to believe that such representation or warranty was false or misleading at the time such
Loan was made.



     Section 13.12. Joint and Several Liability of Borrowers.



          (a) Each Borrower has
determined that it is in its best interest and in pursuance of its legitimate business purposes to
induce the Lenders to make Loans to the Borrowers pursuant to this Agreement. Each Borrower
acknowledges and represents that its business is integrally related to the business of the other
Borrower, that the availability of the Commitments benefits each Borrower individually and that the
Loans made will be for and inure to the benefit of each of the Borrowers individually and as a
group. Accordingly, each Borrower shall be jointly and severally liable (as a principal and not as
a surety, guarantor or other accommodation party) for each and every representation, warranty,
covenant and obligation (including payment, indemnification and reimbursement obligations) to be
performed by the Borrowers under this Agreement, the Notes and the other Facility Documents, and
each Borrower acknowledges that in extending the credit provided herein the Lenders are relying
upon the fact that the obligations of each Borrower hereunder are the joint and several obligations
of a principal. The invalidity, unenforceability or illegality of this Agreement, the Notes or any
other Facility Document as to one Borrower or the release by the Lender Parties of a Borrower
hereunder or thereunder shall not affect the Obligations of the other Borrower under this
Agreement, the Notes or the other Facility Documents, all of which
shall otherwise remain valid and legally binding obligations of the other Borrower. Any
Borrower that makes a payment or distribution hereunder will be entitled to a contribution from the
other Borrower in a




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50









 







pro rata amount, based on the adjusted net assets of each
Borrower determined in accordance with GAAP (provided that such Borrower shall not exercise
any right or remedy against such other Borrower or any property of such other Borrower by reason of
any performance of such Borrower of its joint and several obligations hereunder until one year and
one day after the Obligations have been repaid in full in cash and the Commitments have terminated
or expired). The provisions of this Section 13.12 shall in no respect limit the
obligations and liabilities of each Borrower to the Lender Parties, and each Borrower shall remain
liable to the Lender Parties for the full amount of the Obligations.




          (b) Notwithstanding any provision herein contained to the contrary, each Borrower’s
obligations under this Section 13.12 (which obligations are in any event in addition to all
liabilities in respect of Loans advanced to such Borrower) shall be limited to an amount not to
exceed as of any date of determination the greater of: (i) the net amount of all Loans advanced to
or for the account of the other Borrower under this Agreement and then re-loaned or otherwise
transferred to such Borrower; and (ii) the amount that could be claimed by any Lender Party from
such Borrower under this Section 13.12 without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after
taking into account, among other things, such Borrower’s right of contribution and indemnification
from the other Borrower.




          (c) Each Borrower assumes responsibility for keeping itself informed of the financial
condition of each other Borrower, and each Borrower agrees that the Lender Parties shall not have
any duty to advise such Borrower of information known to the Lender Parties regarding such
condition or any such circumstances or to undertake any investigation not a part of its regular
business routine. If the Lender Party, in its sole discretion, undertakes at any time or from time
to time to provide any such information to a Borrower, such Lender Party shall be under no
obligation to update any such information or to provide any such information to such Borrower on
any subsequent occasion.




          (d) If (i) one or both Borrowers are entitled to a return of excess interest or other amounts
or payments delivered under the Facility Documents, or the return of surplus funds or monies from
bank accounts maintained in accordance with the requirements of the Facility Documents or the
return of any other Collateral or any other proceeds of Collateral (a “Returned Amount”),
and (ii) the Lender Parties are uncertain as to which Borrower is entitled to the Returned Amount,
in the absence of a promptly delivered joint notice from the Borrowers regarding the return of such
Returned Amount, the Lender Parties may either return the Returned Amount to the Borrower they in
good faith believe to be entitled to the same (and the Lender Parties shall not be liable for so
doing provided that the Lender Parties acted in good faith) or, at the joint and several
expense of the Borrowers, interplead such Returned Amount or take such other actions or exercise
such rights or remedies as permitted by Requirements of Law.




          (e) Each Borrower agrees that any notices and information to be provided to any Borrower or
both Borrowers by any Lender Party under the Facility Documents may be sent to both Borrowers or
either Borrower, regardless of whether or not a receiving Borrower is actually
the relevant Borrower or the appropriate person or persons to whom such notice or information
should be addressed or delivered (and each Borrower hereby agrees that no Lender




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51









 







Party will be
liable to the Borrowers for the failure to deliver such notice or information to the appropriate
recipient). Each Borrower hereby waives all confidentiality rights with respect to the delivery of
all such notices and information and agrees that no Lender Party shall be liable for delivering a
notice or information to a Borrower that is not the relevant Borrower or the appropriate recipient
of such notice or information. Each Borrower acknowledges and agrees that it has received full and
sufficient consideration for this provision and that this provision is a material inducement for
the Lender Agent and each Lender entering into the loan documents.




     Section 13.13. Obligors Bound by Intercreditor Agreement. Each Obligor agrees that
ResCap and the Borrowers are entering into the Intercreditor Agreement on behalf of all the
Obligors, and further agrees to be bound by the terms and provisions of the Intercreditor Agreement
(including any amendments, supplements, restatements or other modifications thereto) is if it were
a signatory thereto.



     Section 13.14. Third-Party Beneficiaries. Each of the First Priority Collateral Agent
and the Collateral Control Agent is an express third-party beneficiary hereof.



     Section 13.15. First Priority Collateral Agent; Capacity under this Agreement and
Protections Afforded. Wells Fargo Bank, N.A. is party to this Agreement solely in its capacity
as First Priority Collateral Agent under the Security Agreement and solely for purposes of
Section 12.11(b) herein. The First Priority Collateral Agent shall be fully protected
under this Agreement with respect to any action or inaction hereunder by the indemnities, costs,
expenses and other protective provisions set forth for its benefit under the Security Agreement.



Loan Agreement




52









 





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC,

as Borrower

 	 
	 	By:  	/s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	GMAC MORTGAGE, LLC,

as Borrower

 	 
	 	By:  	                       /s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	RESIDENTIAL CAPITAL, LLC,

as Guarantor

 	 
	 	By:  	                    /s/ John M. Peterson
 	 
	 	 	Name:  	John M. Peterson 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	GMAC RESIDENTIAL HOLDING COMPANY, LLC, 
as Guarantor
 	 
	 	By:  	/s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	GMAC-RFC HOLDING COMPANY, LLC,

as Guarantor

 	 
	 	By:  	                     /s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	HOMECOMINGS FINANCIAL, LLC,

as Guarantor

 	 
	 	By:  	                     /s/ Melissa White
 	 
	 	 	Name:  	Melissa White 	 
	 	 	Title:  	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	RESIDENTIAL MORTGAGE REAL ESTATE HOLDINGS, LLC, 
as
Obligor

 	 
	 	By:  	/s/ Melissa White
 	 
	 	Name:  	Melissa White 	 
	 	Title:  	Assistant Treasurer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	RESIDENTIAL FUNDING REAL ESTATE HOLDINGS, LLC, 

as
Obligor

 	 
	 	By:  	/s/ Melissa White
 	 
	 	Name:	Melissa White 	 
	 	Title:	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	HOMECOMINGS FINANCIAL REAL ESTATE HOLDINGS, LLC, 

as
Obligor

 	 
	 	By:  	/s/ Melissa White
 	 
	 	Name:	Melissa White 	 
	 	Title:	Assistant Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	EQUITY INVESTMENT I, LLC,

as Obligor

 	 
	 	By:  	                    /s/ Michael J. Franta
 	 
	 	Name:	Michael J. Franta 	 
	 	Title:	President 	 
	 




 









 





	 	 	 	 	 
	 	GMAC LLC,

as Lender Agent

 	 
	 	By:  	                       /s/ David  Walker
 	 
	 	 	Name:  	David  Walker 	 
	 	 	Title:  	 	 
	 




S-11









 





	 	 	 	 	 
	 	GMAC LLC,

as Initial Lender

 	 
	 	By:  	/s/ David Walker
 	 
	 	 	Name:  	David Walker	 
	 	 	Title:  	[ILLIGIBLE] 	 
	 




S-12









 





	 	 	 	 	 
	 	DEVELOPERS OF HIDDEN SPRINGS, LLC,

as Obligor

 	 
	 	By:  	/s/ Michael J. Fronta
 	 
	 	 	Name:  	Michael J. Fronta	 
	 	 	Title:  	President	 
	 














 





	 	 	 	 	 
	 	DOA HOLDING PROPERTIES, LLC,

as Obligor

 	 
	 	By:  	                  /s/ Michael J. Franta
 	 
	 	 	Name:  	Michael J. Franta 	 
	 	 	Title:  	President 	 
	 
















 





	 	 	 	 	 	 	 
	RFC ASSET HOLDINGS II, LLC,	 	 
	as Obligor	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Melissa White	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Melissa White	 	 
	 

	 	Title:
	 	Assistant Treasurer	 	 






 









 





	 	 	 	 	 	 	 
	PASSIVE ASSET TRANSACTIONS, LLC,	 	 
	as Obligor	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Melissa White	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Melissa White	 	 
	 

	 	Title:
	 	Assistant Treasurer	 	 






 









 






For purposes of Sections 12.11(b):



WELLS FARGO BANK, N.A., solely in its capacity as First Priority Collateral Agent under the
Security Agreement




	 	 	 	 	 	 	 
	By:	 	/s/ Nicholas D. Tally	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Nicholas D. Tally	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 





SCHEDULE 1.01




DEFINITIONS




     1.1. Definitions. As used in this Agreement the following terms have the meanings as
indicated:



     “2010 Notes” shall have the meaning given such term in the Intercreditor Agreement.



     “2010 Indenture” shall have the meaning given such term in the Intercreditor
Agreement.



     “2015 Notes” shall have the meaning given such term in the Intercreditor Agreement.



     “2015 Indenture” shall have the meaning given such term in the Intercreditor
Agreement.



     “Account Control Agreements” means, collectively: (a) the Initial Account Control
Agreements, (b) the Collection Account Control Agreement and (c) the Alternate Account Control
Agreements.



     “Account Exceptions” means: (a) ResCap shall be entitled to hold in the Exempt Cash
Reserve Account, free of any Liens or control rights in favor of either the First Priority
Collateral Agent or the Collateral Control Agent, up to $250,000,000 and investment earnings on
such amount; and (b) the Obligors may make such other exceptions to Sections 4.01 and
4.03 as the Lender Agent shall agree in writing.



     “Account Transfer Date” means the earliest of (i) September 15, 2008, (ii) such
earlier date as the Borrower, the Guarantors and each Lender shall agree in writing, or (iii) the
date specified by the Lender Agent following the occurrence of an Event of Default.



     “Acquired Indebtedness” means Indebtedness of a Person existing at the time such
Person becomes a Subsidiary or assumed in connection with the acquisition of assets from such
Person.



     “Adjusted Borrowing Base” means, as of any Funding Date, the sum of:



          (a) the Borrowing Base as of the Cut-Off Date which is the subject of the then most
recently delivered Collateral Value Report (as adjusted for any European Collateral Value
Adjustments), minus




          (b) the aggregate amount on deposit in the Sales Proceeds Accounts as of such
Cut-Off Date, as reported in such Collateral Value Report, plus




          (c) the aggregate Fair Value of Eligible Assets that (i) were purchased with funds
on deposit in the Sales Proceeds Accounts as of the Cut-Off Date, (ii) were designated as
Primary Collateral, and (iii) are held by a Borrower or Guarantor as of such Funding
Date, plus




          (d) the aggregate amount of funds on deposit in the Sales Proceeds Accounts as of
such Funding Date, minus




Schedule 1.01-1









 





          (e) the aggregate amount of Net Cash Proceeds of Collateral Dispositions of Primary
Collateral received since the Cut-Off Date, other than any such funds that were used to
purchase Eligible Assets that (i) were designated as Primary Collateral prior to the
Funding Date and (ii) are owned by a Borrower or Guarantor on the Funding Date, in each
case as reported in the Interim Borrowing Base Report for such Funding Date,
minus




          (f) if such Funding Date occurs after the Account Transfer Date, the aggregate
amount of Collections since the Cut-Off Date in respect of Primary Collateral, as
reported on the Interim Borrowing Base Report with respect to such Funding Date.




     “Affected Guarantor” has the meaning set forth in Section 11.07.



     “Affiliate” means, with respect to any Person, any other Person which, directly or
indirectly, controls, is controlled by, or is under common control with, such Person. For purposes
of this definition, “control” (together with the correlative meanings of “controlled by” and “under
common control with”) means possession, directly or indirectly, of the power (a) to vote 20% or
more of the securities (on a fully diluted basis) having ordinary voting power for the directors or
managing general partners (or their equivalent) of such Person, or (b) to direct or cause the
direction of the management or policies of such Person, whether through the ownership of voting
securities, by contract, or otherwise.



     “Affiliate Transaction” means, with respect to any Person any direct or indirect
payment to, or sale, lease, transfer or disposal of any of its properties or assets to, or purchase
of any property or assets from, or entry into or amend any transaction or series of related
transactions, contract, agreement, loan, advance or guarantee with, or for the benefit of, any
Affiliate of ResCap involving aggregate consideration in excess of $10,000,000.



     “Agency Assets” means whole loans eligible for delivery to, or securities issued by
and guaranteed by, Fannie Mae, Ginnie Mae or Freddie Mac.



     “Aggregate Commitment Amount” means, at any time, $3,500,000,000 minus the
amount of any permanent reduction pursuant to Section 2.10(c) of the Commitments in
connection with a Collateral Disposition. The Borrowers may elect to reduce the Aggregate
Commitment Amount in accordance with Section 2.10(b).



     “Agreement” has the meaning set forth in the preamble.



     “Alternate Account” means an account governed by, and held at a financial institution
party to, an Alternate Account Control Agreement.



     “Alternate Account Control Agreement” means a securities account control agreement in
form and substance satisfactory to each Lender in its sole discretion with respect to an account in
which Collections may be deposited and granting the right to the Collateral Control Agent to
deliver a notice of exclusive control over such account.



     “Applicable Deposit Date” means, in the case of any Net Cash Proceeds of a Collateral
Disposition or Collections relating to an Asset, (a) the day such funds are received if such Net
Cash Proceeds or Collections exceed $100,000,000, (b) in all other cases prior to the Account



Schedule 1.01-2









 







Transfer Date, either seven Business Days (in the case of Collections on, or Net Cash Proceeds of
Collateral Dispositions of, REO Property) or five Business Days (in the case of Collections on, or
Net Cash Proceeds of Collateral Dispositions of, any other Collateral) after such funds are
received or (c) in all other cases on or after the Account Transfer Date, either five Business Days
(in the case of Collections on, or Net Cash Proceeds of Collateral Dispositions of, REO Property)
or three Business Days (in the case of Collections on, or Net Cash Proceeds of Collateral
Dispositions of, any other Collateral) after such funds are received; provided that, during
the Deferral Period the Applicable Deposit Date for Net Cash Proceeds of Servicing Advance
Factoring Sales may be deferred to the last day of the Deferral Period so long as the aggregate
amount of such Net Cash Proceeds that have been received by the Obligors and not yet deposited to
the Servicing Advances does not exceed $650,000,000 at any time.



     “Applicable Margin” means 2.75% (275 basis points).



     “Approved Exceptions” means any irregularity in the documentation or underwriting for
an Asset if such defect is not reasonably expected to impair the practical realization of benefits
intended to be created by such documentation or otherwise have a Material Adverse Effect
(determined without giving effect to any indemnification from the related Originator).



     “Approved Fund” means any Person (other than a natural Person) that (a) is engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business; and (b) is administered or managed by a Lender, an
Affiliate of a Lender or a Person or an Affiliate of a Person that administers or manages a Lender.



     “Approved Servicing Advance Factoring Agreement” means an agreement between a GMAC
Party and an Obligor providing for the purchase by such GMAC Party of Servicing T&I Advances,
Servicing P&I Advances or Servicing Corporate Advances from time to time prior to December 31,
2008, in form and substance approved by the Lender Agent in writing; it being understood and agreed
that such purchase shall constitute a Collateral Disposition.



     “Asset” means a Mortgage Loan, a Financial Asset-Backed Security, a Servicer P&I
Advance, a Servicer T&I Advance, a Servicer Corporate Advance or an Incremental Advance.



     “Assignee” has the meaning set forth in Section 9.01.



     “Assignment and Acceptance” means an assignment and acceptance agreement entered into
by a Lender, an Eligible Assignee and the Agent, pursuant to which such Eligible Assignee may
become a party to this Agreement, in substantially the form of Exhibit 9.01.



     “Available Amount” means, on any Business Day, an amount equal to the lesser of (a)
the then current Aggregate Commitment Amount; and (b) the then current Adjusted Borrowing Base.



     “BCG” means the Business Capital Group division of ResCap.



     “BCG Assets” means the assets of BCG and its Subsidiaries which are not Excluded
Assets.



Schedule 1.01-3









 





     “Bilateral Facility” means the facilities listed in Schedule 7.01(t), as such
Schedule may be amended, supplemented or otherwise modified with the consent of the Lender Agent in
its sole and absolute discretion.



     “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.



     “Borrower” has the meaning set forth in the preamble.



     “Borrower Funding Request” means the request to fund a Revolving Loan on any Funding
Date, substantially in the form of Exhibit 2.03(a), delivered in accordance with
Section 2.03(a).



     “Borrowing Base” means, as of any date of determination, an amount determined as of
the Cut-Off Date and reported in the related Collateral Value Report to be equal to (a) the
aggregate Collateral Value (as adjusted by any European Collateral Value Adjustment) of all Primary
Collateral as of the Cut-Off Date as determined in accordance with Section 2.04,
plus (b) the amount of funds on deposit in the Sales Proceeds Accounts on such Cut-Off Date
minus (c) (for any determination after the initial determination of the Borrowing Base) any
Reserves applicable on such date.



     “Borrowing Base Deficiency” has the meaning set forth in Section 2.08(b).



     “Borrowing Base Shortfall Day” has the meaning set forth in Section 2.08(b).



     “Brazilian Security Documents” means the Stock Pledge Agreement to be executed by RFC
for the benefit of the Collateral Control Agent whereby RFC pledges its ownership interest,
representing the corporate capital stock of GMAC-RFC Brasil Limitada and any and all notices,
certificates, agreements and other documents to be executed and delivered by RFC pursuant to the
foregoing or otherwise in connection with the transactions contemplated by the Stock Pledge
Agreement.



     “Breakage Costs” means those amounts payable by the Borrowers to the Lenders in the
event of (a) the payment of any principal of any Loan bearing interest at the LIBOR Rate other than
on the last day of an Interest Period applicable thereto (including as a result of an Event of
Default); (b) the failure to borrow, continue or prepay any such Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be revoked hereunder and is
in fact revoked); or (c) any circumstance described in Section 2.07. In any such event,
the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such
event, such compensation to include an amount determined by each such Lender to be the excess,
if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBOR Rate that would have been applicable to such Loan, for
the period from the date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow or continue, for the period that would have been the
Interest Period for such Loan (not taking into effect any Applicable Margin applicable thereto)),
over (ii) the amount of interest which would accrue on such principal amount for such period at the
interest rate which the applicable Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from



Schedule 1.01-4









 







other banks in the LIBOR market
(not taking into effect any Applicable Margin applicable thereto); provided that each
Lender agrees to take commercially reasonable steps to avoid the need for, or reduce the amount of,
such compensation, in a manner that will not, in the good faith opinion of applicable Lender, be
disadvantageous to such Lender.



     “Business Day” means any day other than (a) a Saturday or Sunday; or (b) a day on
which banking institutions in the States of New York, Minnesota or Pennsylvania are required or
authorized by law to be closed.



     “Canadian Custodial Agreement” means the Custodial Agreement to be executed by and
between RFC and Computershare Trust Company of Canada (“Computershare”) whereby
Computershare acts as custodian for the mortgage loans identified therein and any and all notices,
certificates, agreements and other documents to be executed and delivered by RFC or Computershare
pursuant to the foregoing or otherwise in connection with the transactions contemplated by the
Custodial Agreement.



     “Capital Lease” means, with respect to any Subsidiary, any lease of (or other
agreement conveying the right to use) any real or personal property by such Subsidiary that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Subsidiary.



     “Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests, including, without limitation, limited and general partnership interests, in a
person (other than a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.



     “Carrying Value” means, with respect to any asset and for purposes of determining
Collateral Value, the carrying value of such asset as determined by ResCap in accordance with its
standard valuation practices as applied to its assets as a whole as then in effect (such valuation
practices to be consistent with the methodology used in the preparation of ResCap’s GAAP financial
statements).



     “Cash Equivalents” means (i) securities with maturities of 90 days or less from the
date of acquisition issued or fully guaranteed or insured by the United States Government or any
agency thereof, (ii) certificates of deposit and eurodollar time deposits with maturities of 90
days or less from the date of acquisition and overnight bank deposits of any commercial bank having
capital and surplus in excess of $500,000,000 and a rating of at least A+ and A1 from S&P and
Moody’s, respectively, (iii) repurchase obligations of any commercial bank satisfying the
requirements of clause (ii) of this definition, having a term of not more than seven days with
respect to securities issued or fully guaranteed or insured by the United States Government,
(iv) securities with maturities of 90 days or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s,
(v) securities with maturities of 90 days or less from the date of acquisition backed by standby
letters of credit issued by any commercial bank satisfying the requirements of clause (ii)



Schedule 1.01-5









 







of this definition or, (vi) shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of clauses (i) through (v) of this
definition.



     “Change of Control” means the occurrence of any of the following events: (i) the
Investors together fail to own, directly or indirectly, in the aggregate Capital Stock representing
at least 35% of the aggregate issued and outstanding Voting Stock of ResCap on a fully diluted
basis or (ii) any “person” or “group” (within the meaning of Rule 13d-5 of the Exchange Act), other
than the Investors, shall acquire ownership, directly or indirectly, beneficially or of record, in
the aggregate, Capital Stock representing a greater percentage of Voting Stock than that owned at
such time by the Investors in the aggregate; or (iii) at any time, ResCap shall fail to own,
directly or indirectly, 100% of the aggregate issued and outstanding Capital Stock of the Obligors.



     “Chilean Security Documents” means the Stock Pledge Agreement to be executed by RFC
for the benefit of the Collateral Control Agent whereby RFC pledges its ownership interest,
representing the corporate capital stock of GMAC-RFC Chile Inversiones Limitada and any and all
notices, certificates, agreements and other documents to be executed and delivered by RFC pursuant
to the foregoing or otherwise in connection with the transactions contemplated by the Stock Pledge
Agreement.



     “Closing Date” means the date on which all of the conditions set out in Section
5.01 are satisfied.



     “Collateral” means all property and rights of the Obligors in which a security
interest is granted under the Security Agreement.



     “Collateral Control Agent” means the “Collateral Control Agent” as defined in the
Intercreditor Agreement.



     “Collateral Disposition” means any Transfer, provided that if any such
transaction constitutes part of a series of related transactions, all of the transactions in such
series shall constitute a single Transfer. Collateral Disposition shall not include: (a) the
write-off or forgiveness of investments in the ordinary course of business; (b) any sale of MHF
Assets in the ordinary course of business; (c) the collection of regularly scheduled payments of
principal and interest on an Asset, and (d) the foreclosure of a Mortgage Loan, provided
that the resulting REO Property shall be transferred to REO Owner as soon as reasonably practicable
and shall become part of Primary Collateral.



     “Collateral Release Certificate” means a certificate, in such form as the Lender Agent
and the Borrowers shall agree from time to time and notified to the First Priority Collateral
Agent, executed by an Obligor and delivered to the First Priority Collateral Agent pursuant to
Section 12.11(b).



     “Collateral Value” means the value of the Primary Collateral (or a portion thereof)
calculated in accordance with Schedule 2.04.



     “Collateral Value Certificate” means a Collateral Value Certificate, substantially in
the form of Exhibit 2.04(b), delivered by the Borrowers to the Lender Agent in accordance
with



Schedule 1.01-6









 







Sections 2.04(a)-(b), which may incorporate a Reinvestment Certificate and be attached
to a Collateral Value Report.



     “Collateral Value Report” means a Collateral Value Report, substantially in the form
of Exhibit 2.04(a), delivered by the Borrowers to the Lender Agent in accordance with
Sections 2.04(a)-(b).



     “Collection Account Control Agreement” means the account control agreement covering
the Collection Accounts, which agreement shall be in form and substance satisfactory to the Lender
Agent in its sole discretion.



     “Collection Accounts” means segregated trust accounts established in the name of the
Collateral Control Agent and in a manner satisfactory to the Lender Agent prior to the Account
Transfer Date.



     “Collections” means all payments or proceeds with respect to the Collateral received
by the Borrowers or the Guarantors and not required to be retained or distributed to third parties
pursuant to the terms of the documents governing any applicable Permitted Funding Indebtedness.



     “Commitment” means the commitment of each Lender, subject to the terms and conditions
hereof, to make Revolving Loans to the Borrowers pursuant to Article II.



     “Commitment Termination Date” means the earlier of (a) the Loan Repayment Date; and
(b) the date on which the Commitments are terminated in full or the Aggregate Commitment Amount is
reduced to zero pursuant to the terms of this Agreement (including pursuant to Section 2.10
or Section 8.02).



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
7.01 hereto or such other form as acceptable to the Lender Agent.



     “Concentration Accounts” means the deposit accounts listed on Schedule X(a) to the
Security Agreement.



     “Conforming Loan” means a Mortgage Loan which conforms to the Guidelines as such
guidelines have been modified by Freddie Mac, Fannie Mae, any FHLB, and Ginnie Mae with respect to
a Mortgage Loan originated or purchased by a GMAC Originator.



     “Consolidated Liquidity” means the cash and cash equivalents of ResCap, determined on
a consolidated basis, but excluding cash and cash equivalents of GMAC Bank to the extent included
in the consolidated balance sheet of ResCap.



     “Consolidated Net Income” for any period means the net income (or loss) of ResCap and
its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded from such net income (to the extent otherwise
included therein), without duplication:



Schedule 1.01-7









 





          (a) the net income (or loss) of any Person that is not a Subsidiary, except to the
extent that cash in an amount equal to any such income has actually been received by
ResCap or, subject to clause (c) below, any Subsidiary during such period;




          (b) except to the extent includible in the consolidated net income of ResCap
pursuant to the foregoing clause (a), the net income (or loss) of any Person that
accrued prior to the date that (i) such Person becomes a Subsidiary or is merged into or
consolidated with ResCap or any Subsidiary or (ii) the assets of such Person are acquired
by ResCap or any Subsidiary;




          (c) the net income of any Subsidiary during such period to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary on that
income is not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to that Subsidiary during such period, except that ResCap’s equity in a net loss of any
such Subsidiary for such period shall be included in determining Consolidated Net Income;




          (d) in the case of a successor to ResCap by consolidation, merger or transfer of its
assets, any income (or loss) of the successor prior to such merger, consolidation or
transfer of assets; and




          (e) without duplication of amounts otherwise deducted in determining Consolidated
Net Income, the amount of Permitted Tax Distributions for such period.




     “Consolidated Net Worth” means, at any date, the amount which would appear in
accordance with GAAP on a consolidated balance sheet of ResCap and its Subsidiaries opposite the
heading “equity” (or any similar item), but not including the equity of GMAC Bank to the extent
included in such consolidated balance sheet equity.



     “Consolidated Tangible Net Worth” means, at any date, the result of (a) Consolidated
Net Worth, minus (b) the net book value of all assets on the consolidated balance sheet of
ResCap used to calculate Consolidated Net Worth that would be treated as intangible assets under
GAAP (including goodwill, trademarks, trade names, service marks, service names, copyrights,
patents, organizational expenses and the excess of any equity in any subsidiary over the cost of
the investment in such subsidiary, but not including mortgage servicing rights or any retained
interest in securitized receivables), all as determined on a consolidated basis in accordance with
GAAP.



     “Contract” means, with respect to any Asset, the loan agreement, indenture or other
agreement pursuant to which such Asset has been issued or created, and each other agreement that
governs the terms of, or secures the obligations represented by such Asset.



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control that, together with a Borrower, are treated as a single employer under Section 414(b) or
414(c) of the Internal Revenue Code or Section 4001 of ERISA.



     “Credit and Collection Policies” means, with respect to an Asset, the credit and
collection policies, including loan modification policies, of the related Obligor applicable to
origination and



Schedule 1.01-8









 







servicing of assets of that type, as the same may be amended from time to time in
accordance with its usual and customary practices.



     “Credit Party” has the meaning set forth in Section 3.02(a).



     “Credit Risk Asset” means any Asset with respect to which:



          (a) an Obligor has determined that a default, other than a payment default, as
defined under the related Contract has occurred and such non-payment default continues
unremedied for at least 100 days after notice thereof to the Payor thereof;




          (b) an Obligor learns that the Payor in respect of such Asset has defaulted in the
payment of principal or interest on any other Indebtedness and such default has not been
cured within 100 days; or




          (c) if such Asset is a Financial Asset-Backed Security that was originally rated by
any nationally recognized rating agency, the rating on such security shall have been
reduced by more than two notches by such rating agency.




     “Custodial Transfer Date” means September 15, 2008 or such date as the Borrower, the
Guarantors and each Lender shall agree in writing.



     “Cut-Off Date” means, for any date of determination, the last day of the immediately
prior calendar month; provided, however, that with respect to the Initial
Collateral Value Report and any Interim Borrowing Base Reports relying on it, such date shall be
April 30, 2008.



     “Default” means an Event of Default or an Unmatured Event of Default.



     “Default Rate” means, with respect to any Loan for any Interest Period, and any late
payment of fees or other amounts due hereunder, the LIBOR Rate for the related Interest Period (or
for all successive Interest Periods during which such fees or other amounts were delinquent), plus
the Applicable Margin, plus 2% per annum.



     “Defaulted Asset” means any Asset arising under a Contract for which:



          (a) all or a portion of a scheduled payment is more than 120 days past due (based on
its original due date),




          (b) the related Obligor has determined in accordance with its customary practices
that such Asset is uncollectible,




          (c) the related Payor is subject to an Event of Bankruptcy, or




          (d) such Asset is rated “C” or less by Moody’s Investors Service or “CC” or less by
Standard & Poor’s.




     “Deferral Period” means the period from and including the Closing Date to but
excluding the earliest to occur of (i) December 1, 2008, (ii) the Revolving Loan Repayment Date,
and (iii)



Schedule 1.01-9









 







the date specified by the Lender Agent on at least five Business Days’ written notice by
the Lender Agent to the Borrowers following the occurrence of a Default.



     “Disqualified Equity Interests” means any class of Equity Interests of ResCap or any
of its Subsidiaries that, by its terms, or by the terms of any related agreement or of any security
into which it is convertible, puttable or exchangeable, is, or upon the happening of any event or
the passage of time would be, required to be redeemed by ResCap or such Subsidiary, whether or not
at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, in whole or in part, on or prior to the date which is 91 days after
the Scheduled Loan Repayment Date.



     “Dollars” or “$” means dollars in lawful money of the United States of
America.



     “Dutch Note” means any note issued by GX CE Funding B.V. to ResCap under or pursuant
to the VFLN Agreement.



     “Dutch SPE” means GX CE Funding B.V.



     “Dutch Security Documents” means the Dutch VFLN Agreement and the Dutch Note.



     “Dutch VFLN Agreement” means that certain variable funding loan note agreement dated
on or about June 3, 2008 and entered into by and between, amongst others, ResCap, GX CE Funding
B.V. and Stichting Security Trustee GX CE Funding.



     “Electronic Files” means (i) the electronic data file delivered by the Borrowers to
the Lender Agent immediately prior to the Closing Date with respect to the Initial Collateral, and
(ii) an electronic data file related to any Collateral Value Report, substantially in the form of
the file described in clause (i).



     “Eligible Servicing Advances Agreement” means the agreements giving rise to Servicing
Advances of the type described as Initial Collateral in the Schedules.



     “Eligibility Requirements” are defined in Exhibit A.



     “Eligible Asset” means an Asset which satisfies the following criteria:



          (a) such Asset (i) is a Conforming Loan, Jumbo Loan, Wet Loan, Second Lien Loan,
HELOC Loan, High LTV Loan, Scratch and Dent Loan, (ii) is an Agency
Asset, (iii) is a Financial Asset-Backed Security secured by Conforming Loans, Jumbo
Loans, Wet Loans, Second Lien Loans, HELOC Loans, High LTV Loans, Scratch and Dent Loans
or is an RMBS, CMBS, CDO or CLO, (iv) is an Equity Interest in a Financing SPV that holds
Assets that consist of Conforming Loans, Jumbo Loans, Wet Loans, Second Lien Loans, HELOC
Loans, High LTV Loans, Scratch and Dent Loans or RMBS, CMBS, CDOs or CLOs, (v) is an
Equity Interest in REO Owner, MHF or an MHF Subsidiary, (vi) is an Incremental Advance;
(vii) is an Equity Interest in a joint venture that was owned by BCG on the Closing Date
or that was subsequently acquired by BCG pursuant to a workout of Primary Collateral; or
(viii) is a Servicing Corporate Advance, Servicing T&I Advance or Servicing P&I Advance.




Schedule 1.01-10









 








          (b) such Asset is either (i) owned by a Borrower or a Guarantor or (ii) owned by an
Obligor and is an Incremental Advance;




          (c) if such Asset arises from, or is subject to, Permitted Funding Indebtedness and
if the Fair Value of such Asset exceeds $250,000,000 the Contract and the documentation
related to the such Permitted Funding Indebtedness is in form and substance satisfactory
to the Lender Agent; and




          (d) such Asset satisfies the Eligibility Requirements.




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; or (d) any other Person; provided that the Borrowers have consented to such other
Person (which consent shall not be unreasonably withheld, delayed or conditioned and shall not be
required if an Event of Default has occurred and is continuing).



     “English Deed of Assignment” means the First Priority Deed of Assignment, dated on or
about the date hereof, between ResCap and the First Priority Collateral Agent.



     “English Loan Sale and Purchase Agreement” means the loan sale and purchase agreement
dated on or about June 2, 2008 between the SPE, the English Sellers and the English Security
Trustee.



     “English Note” means the notes issued from time to time under and in accordance with
the English Note Issuance Facility Deed.



     “English Note Issuance Facility Deed” means the note issuance facility deed dated on
or about June 2, 2008 between the SPE, ResCap, the English Security Trustee and the English
Sellers.



     “English Security Documents” means the English Loan Sale and Purchase Agreement, the
English Note Issuance Facility Deed, the English Shares Charge, the English Deed of Assignment, and
each and every other document, agreement and deed entered into by ResCap, its Subsidiary and/or the
English Security Trustee in connection with the purchase of certain residential mortgage loans and
development loans, the issuance of the English Note and creation of security in respect of the
English Note in favor of the English Security Trustee, in each case, by the English SPE.



     “English Security Trustee” means Deutsche Trustee Company Limited (in its capacity as
security trustee in respect of the English Note).



     “English Sellers” means GMAC-RFC Limited and GMAC-RFC Property Finance Limited.



     “English Shares Charge” means the First Priority Shares Charge, dated on or about the
date hereof, between RFC and the First Priority Collateral Agent.



     “English SPE” means Viaduct (No.7) Limited.



Schedule 1.01-11









 





     “Equity Interests” of any Person means (a) any and all shares or other equity
interests (including common stock, preferred stock, limited liability company interests and
partnership interests) in such Person; and (b) all rights to purchase, warrants or options (whether
or not currently exercisable), participations or other equivalents of or interests in (however
designated) such shares or other interests in such Person.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to sections of ERISA also refer to any successor
sections thereto.



     “European Collateral Value Adjustment” has the meaning set forth in Section
2.04(g).



     “European Reporting Assets” means Supporting Assets for the Primary Collateral
consisting of the Dutch Notes and the English Notes.



     “European Reporting Date” means the date on which the August 2008 Monthly Collateral
Report is due hereunder or such other later date as the Lender Agent may agree in its sole and
absolute discretion.



     “European SPV Accounts” means each account held in the name the English SPE or the
Dutch SPE pursuant to the terms of the English Security Documents or the Dutch Security Documents
(as applicable).



     “Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if
either:



          (a) such Person files a voluntary petition in bankruptcy, seeks relief under any
provision of any Insolvency Law or consents to the filing of any petition against it
under any such law;




          (b) a proceeding shall have been instituted by any Affiliate of such Person in a
court having jurisdiction in the premises seeking a decree or order for relief in respect
of such Person in an involuntary case under any applicable Insolvency Law, or for the
appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator,
conservator or other similar official of such Person, or for any substantial part of its
property, or for the winding-up or liquidation of its affairs;




          (c) a proceeding shall have been commenced, without the application or consent of
such Person, in a court having jurisdiction in the premises seeking a decree or order for
relief in respect of such Person in an involuntary case under any applicable Insolvency
Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of such Person, or for any
substantial part of its Property, or for the winding-up or liquidation of its affairs and
such Person shall have failed to obtain a relief (including, without limitation, a
dismissal) or a stay of such involuntary proceeding within thirty (30) days;





Schedule 1.01-12









 








          (d) the admission in writing by such Person of its inability to pay its debts as
they become due;




          (e) such Person consents to the appointment of or taking possession by a custodian,
receiver, conservator, trustee, liquidator, sequestrator or similar official, of all or
any part of its Property, or any custodian, receiver, conservator, trustee, liquidator,
sequestrator or similar official takes possession of all or any part of the Property of
such Person;




          (f) such Person makes an assignment for the benefit of any of its creditors; or




          (g) such Person generally fails to pay its debts as they become due.




     “Event of Default” has the meaning set forth in Section 8.01.



     “Exchange Offer” means the $14,040,000,000 bond exchange and tender offer by ResCap as
substantially described in the Exchange Offer OM pursuant to which, among other things, ResCap will
exchange certain unsecured bonds issued by it for secured bonds, which exchange is to close
contemporaneously with the execution and delivery of this Agreement.



     “Exchange Offer Notes” means any series of ResCap’s senior and senior subordinated
notes which were the subject of, or issued pursuant to, the exchange offer contemplated by the
Exchange Offer OM.



     “Exchange Offer OM” means the Confidential Offering Memorandum and Consent
Solicitation Statement of ResCap dated as of May 5, 2008 as supplemented on May 14, 2008.



     “Excluded Assets” has the meaning set forth in the Security Agreement.



     “Excluded Subsidiary” means (a) GMAC Bank; (b) a Foreign Subsidiary; (c) any
Subsidiary that is effectively restricted from offering a Guarantee hereunder by law or regulation;
(d) any Financing SPV; or (e) any Subsidiary that is effectively restricted from offering a
Guarantee hereunder by its charter, so long as such Subsidiary referred to in this clause
(e) is required to make dividends of all cash legally available therefor that is not required
to pay current obligations of such Subsidiary; provided that (i) no Subsidiary under
clause (a), (b), (c) or (e) above shall be deemed an Excluded
Subsidiary if it guarantees any Indebtedness of ResCap or any unsecured Indebtedness of any
Guarantor for borrowed money, whether or not evidenced by bonds, debentures, notes or similar
instruments and (ii) except as with respect to
GMAC Bank, no Subsidiary the Equity Interests of which are directly owned by ResCap shall be
an Excluded Subsidiary.



     “Exempt Cash Reserve Account” means (a) (i) account number 2000042898508 maintained by
ResCap at Wachovia Bank, N.A. or (ii) account number 2000042898511 maintained by ResCap at Wachovia
Bank, N.A., or (b) an account maintained by ResCap at another financial institution in lieu of the
accounts described in clause (a), provided that (i) ResCap shall have notified the Lender
Agent in writing of the designation of such account and (ii) at any time there shall only be one
Exempt Cash Reserve Account.



     “Exemption Certificate” has the meaning set forth in Section 3.02(f).



Schedule 1.01-13









 





     “Existing Term Loans” means the loans made under the Term Loan Agreement in an
aggregate principal amount of $1,293,500,000 transferred to the Initial Lender pursuant to the Term
Loan Assignment.



     “Facility” means the loan facility provided to the Borrowers by the Lenders pursuant
to this Agreement.



     “Facility Documents” means this Agreement, the Notes, the Security Documents, the
Intercreditor Agreement, the Fee Letter, and all notices, certificates, financing statements,
agreements and other documents to be executed and delivered by the Borrowers or ResCap pursuant to
the foregoing or otherwise in connection with this Agreement or the extension of financing by the
Lenders contemplated hereunder.



     “Fair Value” means with respect to (i) any Permitted Consideration received in
connection with, or acquired with the proceeds of, a Collateral Disposition, the fair market value
of such Permitted Consideration (determined as of the date a binding commitment to acquire such
Permitted Consideration was entered into and taking into account, among other things, current
market conditions and whether such Permitted Consideration is subject to senior claims or set-off
rights), and (ii) any Primary Collateral or Supporting Assets that are the subject of a Collateral
Disposition, the fair market value of such Primary Collateral or Supporting Assets (determined as
of the date a binding commitment to effect such Collateral Disposition was entered into and taking
into account, among other things, current market conditions and whether such Primary Collateral or
Supporting Assets are subject to senior claims or set-off rights); provided that the Fair
Value of a Residual Right in which the holder of an interest senior to the holders of Obligations
has not waived its rights of offset and cross collateralization shall be zero.



     “Fannie Mae” means Fannie Mae, formerly known as The Federal National Mortgage
Association, or any successor thereto.



     “Fee Letter” means the fee letter, dated as of the Closing Date, between the
Borrowers, the Lender Agent and the Lenders.



     “FHA” shall mean The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and including the
Federal Housing Commissioner and the Secretary of Housing and Urban Development where appropriate
under the applicable FHA regulations.



     “FHA Approved Mortgagee” shall mean an institution which is approved by the FHA to act
as mortgagee and servicer of record, pursuant to applicable FHA regulations.



     “FHA Insurance Contract” shall mean the contractual obligation of FHA respecting the
insurance of an FHA mortgage loan pursuant to the National Housing Act, as amended.



     “FHLB” means any Federal Home Loan Bank, or any successor thereto.



     “Financial Asset-Backed Security” means a collateralized mortgage obligation, a
collateralized bond obligation, a collateralized loan obligation or any other security the payments
on which depend primarily on the cash flow from a specified pool of financial assets.



Schedule 1.01-14









 





     “Financing Assets” means whole loan mortgages, Residual Rights, securities (including
Equity Interests or Indebtedness of Subsidiaries that are Financing SPVs but excluding Equity
Interests of other Subsidiaries) and other financial assets or any related assets, rights or
property or the proceeds therefrom.



     “Financing SPV” means a special purpose vehicle formed for financing purposes by
ResCap or any Subsidiary in accordance with past practice of ResCap (or any reasonable extension or
modification of such past practice, including for purposes of financing other types of financial
assets) that does not guarantee any Indebtedness of ResCap or any Subsidiary other than
Indebtedness of another Financing SPV and substantially all of the assets of which consist of
Financing Assets.



     “First Priority Collateral Agent” means Wells Fargo Bank, N.A., in its capacity as
First Priority Collateral Agent under the Security Agreement, and its permitted successors and
assigns thereunder.



     “Foreign Subsidiary” means (a) a Subsidiary that is not organized within one of the 50
states of the United States of America or any jurisdiction that hereafter becomes a state; and (b)
any Subsidiary of a Subsidiary referred to in clause (a) above.



     “Freddie Mac” means Freddie Mac, formerly known as The Federal Home Loan Mortgage
Corporation, or any successor thereto.



     “Funding Date” shall mean the date of any Loan advance hereunder as provided in
Section 2.03 hereof; provided that a Funding Date must be a Business Day.



     “GAAP” means, United States generally accepted accounting principles as in effect from
time to time and as applied by ResCap in the preparation of its financial statements.



     “Ginnie Mae” means Ginnie Mae, formerly known as The Government National Mortgage
Association, or any successor thereto.



     “GMAC Bank” refers to IB Finance Holding Company, LLC, GMAC Bank and any successor
entity.



     “GMAC Mortgage” has the meaning set forth in the preamble.



     “GMAC Originator” means RFC, GMAC Mortgage or any other Subsidiary of ResCap that
originates or purchases Mortgage Loans in the ordinary course of business.



     “GMAC Parties” means GMAC LLC (and its successors) and its Affiliates (other than
ResCap and ResCap’s Subsidiaries and GMAC Bank).



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any municipality and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government. Without limiting the
generality of the foregoing, with respect to the United States, a “Governmental Authority” shall
include any United States federal, state, county, municipal or other local governmental, judicial



Schedule 1.01-15









 







or regulatory authority, agency, arbitration board, body, commission, instrumentality, court or
quasi-governmental authority or tribunal.



     “Guarantee” means the guarantee set forth in Article XI.



     “Guarantor” means (a) ResCap; (b) each of the Subsidiaries of ResCap that is a
signatory hereto as a Guarantor; and (c) any other Subsidiary that executes a joinder agreement to
become a party as Guarantor to this Agreement.



     “Guidelines” means the Freddie Mac Guides, Fannie Mae Guides, FHLB Guides or Ginnie
Mae Guides, as such guides have been amended from time to time with respect to each Seller.



     “HELOC Loan” means an open-end, revolving, home equity line of credit.



     “HLTV Loan” means any Mortgage Loan with a Loan-to-Value Ratio of 100% or more at the
time of its origination.



     “Homecomings” means Homecomings Financial, LLC.



     “HUD” shall mean the U.S. Department of Housing and Urban Development.



     “IBG” means International Business Group, a division of ResCap.



     “IBG Assets” means the assets of IBG and its Subsidiaries which are not Excluded
Assets.



     “Identified Lien Exceptions” means the exceptions listed on Schedule VI(a) to the
Security Agreement.



     “Incremental Advance” means an advance made by an Obligor (i) with respect to a
construction loan facility or a construction project to complete, or maintain the value of, the
related construction project or (ii) under a mezzanine or working capital loan facility under which
such Obligor of such Incremental Advance has a legally binding commitment to make such advance.



     “Indebtedness” means, with respect to any Person, without duplication: (a) all
indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments; (b) all obligations of such Person as lessee under Capital Leases
that have been or should be recorded as liabilities on a balance sheet of such Person in accordance
with GAAP and all obligations of such Person as lessee under any so-called synthetic, off-balance
sheet or tax retention lease; (c) all obligations of such Person to pay the deferred purchase price
of property or services (excluding trade accounts payable in the ordinary course of business); (d)
all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness
shall have been assumed by such Person; (e) all obligations, contingent or otherwise, with respect
to the face amount of all letters of credit and banker’s acceptances issued for the account of such
Person; (f) all Disqualified Equity Interests of such Person; (g) obligations of such Person under
a Bilateral Facility; (h) all Suretyship



Schedule 1.01-16









 







Liabilities of such Person in respect of obligations of
others of the type described in clauses (a) through (g) above; and (i) all
indebtedness of any partnership of which such Person is a general partner, to the extent of such
liability; provided that Indebtedness shall not include (i) obligations arising from
agreements of ResCap or a Subsidiary providing for indemnification, contribution, earnout,
adjustment of purchase price or similar obligations, in each case, incurred or assumed in
connection with the acquisition or disposition of any business, assets or Equity Interests of a
Subsidiary otherwise permitted under this Agreement and not required to be reflected as a liability
on a consolidated balance sheet of ResCap; or (ii) obligations arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business; provided, however, that such Indebtedness
is extinguished within five business days of incurrence.



     “Indemnified Amounts” has the meaning set forth in Section 10.01.



     “Indemnified Party” has the meaning set forth in Section 10.01.



     “Initial Account Control Agreements” means securities account control agreements in
form and substance satisfactory to the Lender Agent in its sole discretion covering the
Concentration Accounts and the Sales Proceeds Accounts.



     “Initial Borrower Funding Request” means the request to fund the Loan on the Initial
Funding Date, substantially in the form of Exhibit 2.03(a), delivered in accordance with
Section 2.03, that is current as of the end of the previous calendar month.



     “Initial Collateral” means assets of the Borrowers, the Guarantors and the Subsidiary
Pledgors that are listed on, or of a type described on, Schedule VI to the Security Agreement and
that exist on the Closing Date.



     “Initial Collateral Value Report” means the Collateral Value Report, substantially in
the form of Exhibit 2.04(a), delivered by the Borrowers in accordance with Section
2.04(a) based on the initial Electronic File relating to the Initial Collateral as of the close
of business on or about April 30, 2008.



     “Initial Funding Date” means the Funding Date on which the first Loan is made pursuant
to this Agreement, as specified in the Initial Borrower Funding Request.



     “Initial Lender” has the meaning set forth in the preamble.



     “Insolvency Law” means any bankruptcy, reorganization, moratorium, delinquency,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction
in effect at any time during the term of this Agreement.



     “Intercreditor Agreement” means the Intercreditor Agreement, dated as of a date on or
before June 6, 2008, among the Senior Secured Collateral Agent, as First Priority Collateral Agent,
Second Priority Collateral Agent and Third Priority Collateral Agent thereunder, the Collateral
Control Agent, the Lender Agent, U.S. Bank National Association, as Trustee under the 2010
Indenture, U.S. Bank National Association, as Trustee under the 2015 Indenture, the Borrowers and
the Guarantors signatories thereto.



Schedule 1.01-17









 





     “Interest Period” means, for any Loan, (a) an initial period beginning on the Funding
Date for such Loan and ending on the last day of the calendar month in which such Funding Date
occurs; and (b) subsequent consecutive periods thereafter, beginning on the first day of each
subsequent calendar month and ending on the earlier of (i) the last day of the same calendar month
in which such Interest Period began and (ii) the Loan Repayment Date.



     “Interim Borrowing Base Report” means a report, substantially in the form of Exhibit
2.03(b), containing a statement of (i) all Net Cash Proceeds received from Collateral Dispositions
of Primary Collateral, (ii) all Eligible Assets acquired with Net Cash Proceeds of Collateral
Dispositions of Primary Collateral, and after the Account Transfer Date, all Collections received
in respect of Primary Collateral, in each case since the Cut-Off Date that is the subject of the
then most recently delivered Collateral Value Report.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



     “Investment Company Act” means the Investment Company Act of 1940, as amended,
together with the rules and regulations promulgated thereunder.



     “Investments” of any Person means:



     (a) all direct or indirect investments by such Person in any other Person in the
form of loans, advances or capital contributions (excluding accounts receivable, trade
credit, advances to customers, commission, travel and similar advances to officers,
directors and employees) or other credit extensions constituting Indebtedness of such
other Person, and any guarantee of Indebtedness of any other Person;



     (b) all purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Equity Interests or other securities of any other Person (other than any
such purchase that constitutes a Restricted Payment of the type described in clause
(b) of the definition thereof); and



     (c) all other items that would be classified as investments on a balance sheet of
such Person prepared in accordance with GAAP (including, if required by GAAP, purchases
of assets outside the ordinary course of business).



     Except as otherwise expressly specified in this definition, the amount of any Investment
(other than an Investment made in cash) shall be the fair market value thereof on the date such
Investment is made.



     “Investors” means the collective reference to General Motors and the Sponsor.



     “Jumbo Loan” means a Mortgage Loan which substantially conforms to the Guidelines
except (i) the principal amount thereof may exceed the principal amount of loans which conform to
the Guidelines or (ii) for other specified exceptions to the Guidelines that are consistent with
the customary practices of the applicable GMAC Originator.



     “Kick-Out Loan” means a Mortgage Loan repurchased by an Obligor from a Financing SPV.



Schedule 1.01-18









 





     “Lender” has the meaning set forth in the preamble.



     “Lender Agent” means, initially, GMAC LLC and thereafter any successor Lender Agent
appointed pursuant to Section 12.09.



     “Lender Parties” means the Lender Agent, the First Priority Collateral Agent, the
Collateral Control Agent, the Lenders and the other Indemnified Parties.



     “LIBOR Rate” means, with respect to any Loan for any Interest Period, the rate
appearing on Page 3750 of the Dow Jones “Markets” screen (or on any successor or substitute page of
such service, or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as determined by the Lender
Agent from time to time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a
maturity of one (1) month. In the event that such rate is not available at such time for any
reason, then the “LIBOR Rate” with respect to such Interest Period shall be the rate at which
dollar deposits of an amount comparable to the amount of the requested Loan and for a maturity of
one (1) month are offered by the principal London office of JPMorgan Chase Bank in immediately
available funds in the London interbank market at approximately 11:00 a.m., London time, two (2)
Business Days prior to the commencement of such Interest Period.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing statement under the UCC
of any jurisdiction.



     “Loan Repayment Date” means, with respect to Term Loans, the Term Loan Repayment Date
and, with respect to Revolving Loans, the Revolving Loan Repayment Date.



     “Loans” means Term Loans and Revolving Loans.



     “Loan-to-Value Ratio” means with respect to a Mortgage Loan, a fraction, expressed as
a percentage, the numerator of which is the then current principal balance of such Mortgage Loan on
such date, and the denominator of which is the appraised value of the related mortgaged property on
such date.



     “Mandatory Repayment Date” means, (i) with respect to Collateral Dispositions in
excess of $100,000,000, within five (5) Business Days of such Collateral Disposition; and (ii) with
respect to all other Collateral Dispositions, no later than the 10th Business Day following the end
of each month in which such Collateral Dispositions occur; provided, however, that
to the extent that a Collateral Disposition occurring prior to December 1, 2008 consists of a
Servicing Advance Factoring Sale, the Mandatory Repayment Date with respect to such Collateral
Disposition shall be no earlier than December 1, 2008.



Schedule 1.01-19









 





     “Material Adverse Effect” means any event which has had or would reasonably be
expected to have a material adverse effect on (i) the business, assets or financial condition of
any Obligor or any such Obligor and its Subsidiaries taken as a whole since December 31, 2007,
other than as disclosed in the Obligor’s financial statements as detailed in Section
6.01(o), (ii) the validity or enforceability of any of the Facility Documents or the rights or
remedies of the Lender Parties thereunder, or (iii) the value, validity, enforceability,
saleability or collectibility of the Collateral or a material portion thereof, or the
enforceability, perfection or priority of the First Priority Collateral Agent’s security interest
on behalf of the Lender Parties in the Collateral; provided, however, that a
Material Adverse Effect shall not be determined to include effects arising out of, relating to or
resulting from the occurrence of a ratings downgrade of GMAC LLC or any of its Affiliates
(including ResCap) or any of their outstanding debt (it being understood that the events giving
rise to such downgrade shall not be excepted from the definition of Material Adverse Effect).



     “Maximum Guaranty Amount” has the meaning set forth in Section 11.07.



     “Mexican Security Documents” means the Stock Pledge Agreement to be executed by RFC
for the benefit of the Collateral Control Agent whereby RFC pledges (i) shares, each with a par
value of $1.00 (one Peso 00/100) legal currency of Mexico, representing the corporate capital stock
of GMAC RFC Auritec, S.A., (ii) shares, each with a par value of $1,000.00 (one thousand Pesos
00/100), representing a portion of the corporate capital stock of GMAC Hipotecaria, S.A. de C.V.,
S.F.O.L., and (iii) shares, each with a par value of $1,000.00 (one thousand Pesos 00/100),
representing a portion of the corporate capital stock of GMAC Financiera, S.A. de C.V., S.F.O.L.
and any and all notices, certificates, agreements and other documents to be executed and delivered
by RFC pursuant to the foregoing or otherwise in connection with the transactions contemplated by
the Stock Pledge Agreement.



     “MHF” means GMAC Model Home Finance, LLC, a Delaware limited liability company, and
its successors in interest.



     “MHF Assets” means (i) the assets of MHF, its Subsidiaries and any entity which was a
Subsidiary of MHF as of the Closing Date, other than the Equity Interests in such Subsidiaries to
the extent such assets were held by MHF or such Subsidiaries on the Closing Date or arise out of
assets, properties or rights that were so held on the Closing Date, or (ii) if the Equity Interest
in
MHF or its Subsidiary shall have been the subject of a Collateral Disposition, assets that
were MHF Assets at the time of such Collateral Disposition.



     “MHF Subsidiary” means a Subsidiary of MHF that existed on the Closing Date and was
included in Initial Collateral.



     “Model Home” means a model home, the construction of which was financed by BCG,
located on real property owned wholly or partially by BCG.



     “Monthly Collateral Report” shall mean a Collateral Value Report together with the
related Collateral Value Certificate, Reinvestment Certificate and Electronic File.



Schedule 1.01-20









 





     “Monthly Settlement Date” means the thirteenth Business Day of each calendar month or,
if such thirteenth is not a Business Day, the first Business Day thereafter, commencing June 2008.



     “Mortgage Loan” means any first or second lien mortgage loan subject to the terms of
this Agreement.



     “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Net Cash Proceeds” means, with respect to any Collateral Disposition, the proceeds
thereof in the form of cash or cash equivalents, net of:



          (a) brokerage commissions and other fees and expenses (including fees, discounts and
expenses of legal counsel, accountants and investment banks, consultants and placement
agents) of such Collateral Disposition;




          (b) provisions for taxes payable as a result of such Collateral Disposition (after
taking into account any available tax credits or deductions and any tax sharing
arrangement);




          (c) amounts required to be paid to any Person (other than ResCap or any Subsidiary
thereof) owning a beneficial interest in the assets subject to the Collateral Disposition
or having a Lien thereon (excluding the Lien under the Security Agreement);




          (d) payments of unassumed liabilities (not constituting Indebtedness) relating to
the assets sold at the time of, or within 30 days after the date of, such Collateral
Disposition; and




          (e) appropriate amounts to be provided by any Obligor, as the case may be, as a
reserve required in accordance with GAAP against any adjustment in the sale price of such
asset or assets or liabilities associated with such Collateral Disposition and retained
by any Obligor, as the case may be, after such Collateral Disposition, including pensions
and other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Collateral Disposition, all as reflected in an officers’ certificate
delivered to the Lender Agent.




     “Non-Recourse Debt” means Indebtedness of any Subsidiaries of ResCap that are special
purpose vehicles acting as sellers or borrowers under an asset securitization; provided
that no Bilateral Facility shall be Non-Recourse Debt.



     “Non-UCC Assets” means (a) assets of the Borrowers and the other Obligors located
outside the United States to the extent a Lien on such assets cannot be perfected by the filing of
UCC financing statement in the jurisdictions of organization of the Borrowers and such Obligors;
(b) all of the Borrowers’ and the other Obligors’ right, title and interest in owned real property;
and (c) motor vehicles and other assets subject to certificates of title to the extent that a Lien
therein cannot be perfected by the filing of UCC financing statement in the jurisdiction of
organization of the Borrowers or the other Obligors.



Schedule 1.01-21









 





     “Non-U.S. Lender” has the meaning set forth in Section 3.02(f).



     “Note” means any promissory note of the Borrowers issued to a Lender, in substantially
the form of Exhibit 2.02(a), as amended from time to time, and any replacements thereof or
substitution therefor.



     “Obligations” means obligations, indebtedness, fees, expenses (including, without
limitation, attorneys’ fees and expenses) and liabilities of any Borrower, any Guarantor or any
other Obligor to any Lender Party, now existing or hereafter arising under or in connection with
any Facility Document, whether monetary or otherwise, matured or unmatured, direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several, including the obligations, indebtedness and liabilities of the Borrowers under the Notes
or otherwise pursuant to the terms of the other Facility Documents, and all interest accruing
thereon (including any interest that accrues after the commencement of any proceeding by or against
any Borrower, any Obligor or any other Person under any bankruptcy, insolvency, liquidation,
moratorium, receivership, reorganization or other debtor relief law) and all attorneys’ fees and
other expenses incurred in the collection or enforcement thereof.



     “Obligors” means, collectively, ResCap, the Subsidiary Pledgors, the Guarantors, the
Borrowers, any party signatory as an Obligor hereto, any party signatory as a Grantor under the
Security Agreement, and any other Person (other than the Lender Parties) that is obligated to the
Lender Parties under any Facility Document.



     “Optional Prepayment Date” has the meaning set forth in Section 2.09.



     “Originator” means a Person (other than an Obligor) from which an Obligor (or its
predecessor in interest) acquired an interest in an Asset.



     “Other Receivables” means receivables due to affiliates of ResCap from either the FHA
or the VHA relating to a pool of loans subject to FHA Insurance Contracts or VA Guaranty Agreements
that either: (i) are more than ninety (90) days delinquent, (ii) are in the foreclosure process, or
(iii) have completed the foreclosure process.



     “Other Taxes” has the meaning set forth in Section 3.02(b).



     “Outstanding Aggregate Loan Amount” means, at any time, the aggregate of the
Outstanding Revolving Loan Amount and the Outstanding Aggregate Term Loan Amount. With respect to
calculations of the Outstanding Aggregate Loan Amount done in connection with a requested funding
of a Revolving Loan to repay the Term Loans, such calculation shall give effect to both the
requested increase in the Outstanding Aggregate Revolving Loan Amount and the corresponding
decrease in the Outstanding Aggregate Term Loan Amount.



     “Outstanding Aggregate Revolving Loan Amount” means, at any time, the aggregate of the
Outstanding Lender Revolving Loan Amounts of all the Lenders.



     “Outstanding Aggregate Term Loan Amount” means, at any time, the aggregate of the
Outstanding Lender Term Loan Amounts of all the Lenders.



Schedule 1.01-22









 





     “Outstanding Lender Loan Amount” means, at any time with respect to any Lender, the
aggregate of the Outstanding Lender Revolving Loan Amount and the Outstanding Lender Term Loan
Amount of such Lender.



     “Outstanding Lender Revolving Loan Amount” means, at any time with respect to any
Lender, the aggregate principal amount of all then outstanding Revolving Loans advanced by such
Lender.



     “Outstanding Lender Term Loan Amount” means, at any time with respect to any Lender,
the aggregate principal amount of all then outstanding Term Loans advanced by such Lender.



     “Par Value” means, with respect to any Asset and for purposes of determining
Collateral Value, the par value of such Asset as determined by ResCap in accordance with its
customary practices in effect on the Closing Date.



     “Participant” shall have the meaning set forth in Section 9.04.



     “Payor” means any Person required to make payments representing the return of an
Obligor’s investment in an Asset.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means a “pension plan”, as such term is defined in Section 3(2)
of ERISA, that is subject to Title IV of ERISA (other than a Multiemployer Plan), and to which any
Obligor or any corporation, trade or business that is, along with the Obligor, a member of a
Controlled Group, may have liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding
five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.



     “Permitted Affiliate Transaction” means an Affiliate Transaction constituting or
involving (a) a Restricted Payment permitted pursuant to Section 7.02(g); (b) the payment
of
reasonable and customary fees and indemnities to members of the Board of Directors of ResCap
or a Subsidiary; (c) the payment of reasonable and customary compensation and other benefits
(including retirement, health, option, deferred compensation and other benefit plans) and
indemnities to officers and employees of ResCap or any Subsidiary; (d) transactions between or
among ResCap and/or its Subsidiaries; (e) the issuance of Equity Interests (other than Disqualified
Equity Interests) of ResCap otherwise permitted hereunder and capital contributions to ResCap by
its equity owners; (f) any agreement or arrangement as in effect on the Closing Date and any
amendment or modification thereto so long as such amendment or modification is consented to in
writing by each Lender; and (g) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services, in each case, in the ordinary course of business and consistent with
past practice and on terms that are no less favorable to ResCap or the applicable Subsidiary, as
the case may be, as determined in good faith by ResCap, than those that could be obtained in a
comparable arm’s length transaction with a Person that is not an Affiliate of ResCap.



Schedule 1.01-23









 





     “Permitted Consideration” means, with respect to each Collateral Disposition, cash,
cash equivalents and/or Eligible Assets that, concurrently with such Collateral Disposition, become
Primary Collateral or Supporting Assets for Primary Collateral.



     “Permitted Funding Indebtedness” means the Bilateral Facilities, the Indebtedness
listed on Exhibit C hereto and any Indebtedness incurred in the ordinary course of the
business of ResCap and its Subsidiaries through financing, securitization and hedging activities
(and provided that hedging activities cannot be for speculative purposes), including
customary lines of credit, asset swaps, repurchase transactions or warehouse financings involving
residential mortgage loans, home equity loans or second lien loans (including any reasonable
extension or evolution of such activities including for purposes of financing other types of
financial assets) and other Indebtedness on terms at least as favorable to ResCap or the applicable
Subsidiary than would be available on an arm’s-length basis.



     “Permitted Indebtedness” means,



          (a) the Obligations;




          (b) other Indebtedness of the Obligors and their Subsidiaries outstanding on the
Closing Date and up to $3,050,000,000 of 2010 Notes and up to $7,700,000,000 of 2015
Notes issued pursuant to the Exchange Offer;




          (c) Permitted Funding Indebtedness of the Obligors and their Subsidiaries;




          (d) unsecured Indebtedness among ResCap and its Subsidiaries;




          (e) Indebtedness of the Obligors and their Subsidiaries under interest rate
agreements and currency exchange agreements entered into in the ordinary course of
business and not for speculative purposes;




          (f) Permitted Refinancing Indebtedness of the Obligors and their Subsidiaries in
respect of Indebtedness outstanding in reliance on clauses (b) and (c)
above and this clause (f);




          (g) Indebtedness of the Obligor and their Subsidiaries to the GMAC Parties incurred
in accordance with Section 7.02(l), provided that such Indebtedness is
not secured by any Collateral; and




          (h) Indebtedness of the Borrowers or any of their Subsidiaries not otherwise
permitted hereunder in an aggregate principal amount or liquidation preference which,
when aggregated with the principal amount and liquidation preference of all other
Indebtedness then outstanding and incurred pursuant to this clause (h), does not
at any one time outstanding exceed $500,000,000.




     it being understood that (i) in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses (a) through
(g) of this definition, ResCap will, in its sole discretion, classify or reclassify, or
later divide, classify or reclassify, such item of Indebtedness in any manner that complies with
this definition and such item of Indebtedness will be treated as having been incurred pursuant to
only one of such clauses



Schedule 1.01-24









 







or pursuant to this definition (provided that all Indebtedness
outstanding under this Agreement will at all times be deemed to be outstanding pursuant to
clause (a) above); and (ii) the principal amount of any Disqualified Equity Interests will
be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in
either case, any redemption or repurchase premium) or the liquidation preference thereof.



     “Permitted Liens” means:



          (a) Liens against the Obligors and their Subsidiaries existing at the Closing Date
and arising under the Bilateral Facilities;




          (b) (i) Liens that secure Obligations; and (ii) Liens that secure Indebtedness under
the 2010 Notes and the 2010 Indenture and the 2015 Notes and the 2015 Indenture;
provided that the Liens in clause (ii) are subordinated in priority to
the Liens in clause (i) in accordance with, and subject to the terms of, the
Intercreditor Agreement;




          (c) any Lien for taxes or assessments or other governmental charges or levies not
then due and payable (or which, if due and payable, are being contested in good faith
either with the third party to whom such taxes are owed or the third party obligated to
pay such taxes and for which adequate reserves are being maintained, to the extent
required by GAAP and such proceedings have the effect of preventing the forfeiture or
sale of the property or assets subject to any such Lien);




          (d) any warehousemen’s, materialmen’s, landlord’s or other similar Liens arising by
law for sums not then due and payable (or which, if due and payable, are being contested
in good faith either with the third party to whom such sums are owed or the third party
obligated to pay such sums and with respect to which adequate reserves are being
maintained, to the extent required by GAAP and such proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to any such Lien);




          (e) survey exceptions, encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other similar restrictions as to the use
of real properties or Liens incidental to the conduct of the business of such Person or
to the ownership of its properties which were not incurred in connection with
Indebtedness and which do not individually or in the aggregate materially adversely
affect the value of ResCap and its Subsidiaries or materially impair the operation of the
business of such Person;




          (f) pledges or deposits (i) in connection with workers’ compensation, unemployment
insurance and other types of statutory obligations or the requirements of any official
body, or (ii) to secure the performance of tenders, bids, surety or performance bonds,
leases, purchase, construction, sales or servicing contracts and other similar
obligations incurred in the normal course of business consistent with industry practice,
or (iii) to obtain or secure obligations with respect to letters of credit, guarantees,
bonds or other sureties or assurances given in connection with the activities described
in clauses (f)(i) and (f)(ii) above, in each case not incurred or made in
connection with the borrowing of money, the obtaining of advances or credit or the
payment of the deferred purchase price of property or services or imposed by





Schedule 1.01-25












 




ERISA or the
Internal Revenue Code, in connection with a “plan” (as defined in ERISA), or (iv) arising
in connection with any attachment unless such Liens shall not be satisfied or discharged
or stayed pending appeal within sixty (60) days after the entry thereof or the expiration
of any such stay;




          (g) Liens securing Indebtedness of ResCap or a Subsidiary thereof to the extent such
secured Indebtedness is pledged as Collateral pursuant to the Facility Documents;




          (h) Liens to secure any Permitted Refinancing Indebtedness secured by Liens referred
to in clause (a) above; provided that such Liens do not extend to any
other property or assets and the principal amount of the obligations secured by such
Liens is not increased;




          (i) licenses of intellectual property granted in the ordinary course of business;




          (j) Liens (i) that are contractual rights of set-off (A) relating to the
establishment of depository relations with banks not given in connection with the
issuance of Indebtedness, (B) relating to pooled deposit or sweep accounts of ResCap or
any of its Subsidiaries to permit satisfaction of overdraft or similar obligations and
other cash management activities incurred in the ordinary course of business of ResCap
and or any of its Subsidiaries or (C) relating to purchase orders and other agreements
entered into with customers of ResCap or any of its Subsidiaries in the ordinary course
of business, and (ii) of a collecting bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (A) encumbering reasonable
customary initial deposits and margin deposits and attaching to commodity trading
accounts or other brokerage accounts incurred in the ordinary course of
business, and (B) in favor of banking institutions arising as a matter of law or
pursuant to customary account agreements encumbering deposits (including the right of
set-off) and which are within the general parameters customary in the banking industry;




          (k) deposits made in the ordinary course of business to secure liability to
insurance carriers;




          (l) leases, subleases, licenses or sublicenses granted to others in the ordinary
course of business so long as such leases, subleases, licenses or sublicenses are
subordinate in all respects to the Liens granted and evidenced by the Security Documents
and which do not materially interfere with the ordinary conduct of the business of ResCap
or any Subsidiaries and do not secure any Indebtedness;




          (m) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by ResCap or any Subsidiary thereof in the ordinary course
of business;




          (n) Liens on the assets of a Subsidiary that is not a Guarantor securing
Indebtedness and other obligations of such Subsidiary incurred in compliance with this
Agreement;




          (o) Liens on the Collateral granted under the Security Documents in favor of the
First Priority Collateral Agent to secure the Obligations and the notes issued pursuant
to the



Schedule 1.01-26









 






Exchange Offer; provided that such Liens are subject to the terms of the
Intercreditor Agreement;




          (p) Liens on Financing Assets securing Permitted Funding Indebtedness;




          (q) any extensions, substitutions, replacements or renewals of the foregoing; and




          (r) prior to June 30, 2008, all Identified Lien Exceptions, and after such date the
Identified Lien Exceptions denoted with an asterix on Schedule VI(a) to the Security
Agreement.




     “Permitted Refinancing Indebtedness” means Indebtedness that refunds, refinances,
renews, replaces or extends any Indebtedness permitted to be incurred by ResCap or any Subsidiary
pursuant to the terms of this Agreement, whether involving the same or any other lender or creditor
or group of lenders or creditors, but only to the extent that:



          (a) the Permitted Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended or (b) at least 91
days after the Scheduled Loan Repayment Date,




          (b) the Permitted Refinancing Indebtedness has a weighted average life to maturity
that is equal to or greater than the remaining weighted average life to maturity of the
Indebtedness being refunded, refinanced, renewed, replaced or extended,




          (c) such Permitted Refinancing Indebtedness is in an aggregate principal amount that
is less than or equal to the sum of (i) the aggregate principal or accreted amount (in
the case of any Indebtedness issued with original issue discount) then outstanding under
the Indebtedness being refunded, refinanced, renewed, replaced or extended, (ii) the
amount of accrued and unpaid interest, if any, and premiums owed, if any, not in excess
of preexisting prepayment provisions on such Indebtedness being refunded, refinanced,
renewed, replaced or extended and (iii) the amount of reasonable and customary fees,
expenses and costs related to the incurrence of such Permitted Refinancing Indebtedness,




          (d) such Permitted Refinancing Indebtedness is incurred by the same Person (or its
successor) that initially incurred the Indebtedness being refunded, refinanced, renewed,
replaced or extended or by ResCap or a Guarantor; and




          (e) if the Indebtedness is unsecured, such Permitted Refinancing Indebtedness is
unsecured.




     “Permitted Restricted Payments” means any of the following:



          (a) the payment of any dividend on Equity Interests in ResCap or a Subsidiary within
sixty (60) days after declaration thereof if on the declaration date after giving effect
to such Restricted Payment on a pro forma basis, the aggregate amount expended or
declared for all Restricted Payments made on or after the Closing Date (excluding
Restricted Payments




Schedule 1.01-27









 







described in clauses (b), (c), (d),
(f) and (g) and of this definition), shall not exceed the Restricted
Payment Maximum Amount;




          (b) the retirement of any Equity Interests of ResCap by conversion into, or by or in
exchange for, Qualified Equity Interests, or out of net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of ResCap) of other Qualified
Equity Interests;




          (c) the redemption, defeasance, repurchase or acquisition or retirement for value of
any Indebtedness of ResCap or a Guarantor in exchange for or out of the net cash proceeds
of a substantially concurrent issue and sale (other than to a Subsidiary of ResCap) of
(i) Qualified Equity Interests or (ii) Permitted Refinancing Indebtedness;




          (d) in the case of a Collateral Disposition, the repurchase or other acquisition out
of Net Cash Proceeds of notes issued pursuant to the Exchange Offer to the extent
required under the terms thereof and not otherwise required to make payments or
reinvestments pursuant to Section 2.08(c);




          (e) Permitted Tax Distributions;




          (f) the exchange of, the Preferred Units of ResCap existing as of the Closing Date
for any property into which such Preferred Units are exchangeable in accordance with
their terms; and




          (g) if no Default is continuing, Restricted Payments not otherwise Permitted
Restricted Payments in an amount not to exceed $250,000,000 per year.




     “Permitted Tax Distributions” means, with respect to any period during which ResCap is
treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax
purposes, distributions to ResCap’s direct owner(s) (whether pursuant to a tax sharing agreement or
otherwise) to fund the income tax liabilities of such owner(s) (or, if a direct owner is a
pass-through entity, of an indirect owner) resulting from ResCap being a partnership or disregarded
entity for federal, state and/or local income tax purposes, in an aggregate amount not to exceed
the product of (a) the net taxable income of ResCap for such period, calculated in accordance with
applicable law, reduced by any cumulative net taxable loss with respect to all prior post-closing
periods (determined as if all such periods were one period) to the extent such cumulative net
taxable loss is of a character (ordinary or capital) that would permit such loss to be deducted
against the income of the current period; and (b) the highest combined marginal federal, state
and/or local income tax rate (taking into account the deductibility of state and local income taxes
for federal income tax purposes and the character of the taxable income in question (i.e., long
term capital gain, qualified dividend income, etc.)) applicable to any such direct or indirect
owner of ResCap. Permitted Tax Distributions may be made quarterly based on ResCap’s good faith
estimate of its taxable income, with appropriate adjustments to be made on an annual basis based
upon the determination of ResCap’s actual taxable income.



     “Person” means any individual, corporation, estate, partnership, limited liability
company, limited liability partnership, joint venture, association, joint-stock company, business
trust, trust, unincorporated organization, government or any agency or political subdivision
thereof, or other entity of a similar nature.



Schedule 1.01-28









 





     “Post-Closing Requirements” means the delivery of the items specified on
Schedule 8.01(m) in form and substance satisfactory to the Lender Agent in its reasonable
discretion within the time frame specified in such schedule for each such item.



     “Preferred Units” means the non-cumulative, non-participating, perpetual preferred
membership interests of ResCap, the designation of which is as set forth in the Amended and
Restated Operating Agreement of ResCap.



     “Prepayment Notice” means a notice substantially in the form of Exhibit
2.09(a).



     “Primary Collateral” means Initial Collateral, REO Property acquired as the result of
foreclosure on Primary Collateral, Substitute Collateral, Reinvestment Collateral, any assets
acquired as a result of exercising remedies under any Initial Collateral or Reinvestment
Collateral, and all proceeds of the foregoing.



     “Pro Rata Share” means, relative to any Lender, the percentage set forth below its
name on its signature page hereto or set forth in an Assignment and Acceptance under the “Pro Rata Share” column, as such percentage may be adjusted from time to time pursuant to Assignment and
Acceptances executed by such Lender and its assignee and delivered pursuant to
Section 9.01. A Lender shall not have any Commitment if its Pro Rata Share is zero.



     “Qualified Equity Interests” means Equity Interests of ResCap other than Disqualified
Equity Interests.



     “Register” has the meaning set forth in Section 2.02(b).



     “Remittance Date” means the 18th calendar day of each month (or if such day is not a
Business Day, the first Business Day preceding such date) on which servicing advances are due under
the applicable servicing agreement by a servicing Subsidiary of ResCap.



     “Reinvestment Certificate” means a certificate of a Responsible Officer of the
relevant Obligor (i) identifying the Primary Collateral that has been the subject of a Collateral
Disposition, (ii) identifying any Reinvestment Collateral acquired with the Permitted Consideration
for such Collateral Disposition and (iii) certifying that such Collateral Disposition complied with
Section 7.02(k).



     “Reinvestment Collateral” means (i) Assets acquired as Permitted Consideration for a
Collateral Disposition, (ii) Servicing P&I Advances, Servicing Corporate Advances, and Servicing
T&I Advances arising under a Specified Servicer Advances Agreement, and (iii) other Eligible Assets
acquired with Net Cash Proceeds of a Collateral Disposition, which assets shall be described in a
Reinvestment Schedule delivered to the Lender Agent and the First Priority Collateral Agent on each
Monthly Settlement Date as provided in Section 7.01(g), and which Reinvestment Schedule
shall be accompanied by a Reinvestment Certificate; provided that the failure to deliver
such Reinvestment Schedule or Reinvestment Certificate shall not relieve the Obligors of any of
their obligations to treat such assets as Primary Collateral or to comply with the provisions of
the Facility Documents relating to Primary Collateral.



Schedule 1.01-29









 





     “Reinvestment Schedule” means a schedule describing the Reinvestment Collateral, which
schedule shall be in such form as the Lender Agent may approve from time to time in its discretion
after consultation with the Borrowers.



     “REO Owner” means (i) Residential Mortgage Real Estate Holdings, LLC, a Delaware
limited liability company, (ii) Residential Funding Real Estate Holdings, LLC, a Delaware limited
liability company, (iii) Homecomings Financial Real Estate Holdings, LLC, a Delaware limited
liability company, and (iv) any other company approved in writing by the Lender Agent.



     “REO Property” means real estate owned property (i.e., a mortgaged property acquired
through foreclosure or deed-in-lieu of foreclosure).



     “Repayment Notice” means a notice substantially in the form of Exhibit
2.08(b).



     “Requirements of Law” means, with respect to any Person or any of its property, the
certificate of incorporation of articles of association and by-laws, certificate of limited
partnership, limited partnership agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of any arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, whether Federal, state or local (including,
without limitation, usury laws, the Federal Truth in Lending Act and retail installment sales
acts).



     “Required Lenders” means, at any time, Lenders holding more than 67% of the sum of the
Outstanding Aggregate Loan Amount plus the unfunded portion of the Aggregate Commitment Amount.



     “ResCap” means Residential Capital, LLC, a Delaware limited liability company, and its
successors in interest.



     “Reserves” shall mean as of any date of determination, such amounts as the Lender
Agent may, from time to time and acting reasonably, establish and revise reducing the amount of
Loans which would otherwise be available to Borrowers under the lending formula(s) provided for
under Schedule 2.04: (a) to reflect events, conditions, contingencies or risks which, as
reasonably determined by the Lender Agent, adversely affect, or would have a reasonable likelihood
of adversely affecting, either (i) the Primary Collateral or any other property which is security
for the Obligations or its value, (ii) the assets, business or prospects of any Borrower or any
Guarantor or (iii) the security interests and other rights of the Lender Parties in the Primary
Collateral (including the enforceability, perfection and priority thereof); or (b) to reflect the
Lender Agent’s reasonable belief that any collateral report or financial information furnished by
or on behalf of any Borrower or any Guarantor to the Lenders is or may have been incomplete,
inaccurate or misleading in any material respect; or (c) in respect of any state of facts which the
Lender Agent reasonably determines constitutes a Default or an Event of Default. To the extent the
Lender Agent may revise the lending formulas used to determine the Borrowing Base or establish new
criteria or revise existing criteria for Eligible Assets so as to address any circumstances,
condition, event or contingency in a manner satisfactory to the Lender Agent, the Lender Agent
shall not establish a Reserve for the same purpose. The amount of any Reserve



Schedule 1.01-30









 




established by the
Lender Agent shall have a reasonable relationship to the event, condition or other matter which is
the basis for such reserve as reasonably determined by the Lender Agent.




     “Residual Rights” means (i) in the case of loans secured by mortgage loans or mortgage
related securities, rights in the mortgage loans or mortgage-related securities securing such loan
after taking into account senior claims thereon, (ii) in the case of repurchase agreements, both
the rights under the repurchase agreement (or any transaction thereunder) and rights in the
mortgage loans or mortgage-related securities transferred pursuant to the provisions of the
repurchase agreement (or any transaction thereunder) after taking into account any senior claim
claims, thereon, and (iii) in the case of any other Collateral or Supporting Assets, rights in such
Collateral or Supporting Assets after taking into account senior claims thereon.



     “Responsible Officer” means (a) with respect to each Borrower and each Obligor, the
chief executive officer, president, chief financial officer, treasurer, assistant vice president,
assistant treasurer, secretary or assistant secretary of such Borrower, or any other officer having
substantially the same authority and responsibility; provided that with respect
specifically to the obligations of each Borrower or ResCap set forth in Section 7.01(f)
hereof, only the chief financial officer, treasurer, assistant treasurer, or controller and chief
accounting officer of such Person shall be deemed to be a Responsible Officer; and (b) with respect
to any Lender, a lending officer charged with responsibility for the day to day management of the
relationship of such institution with the Borrowers.



     “Restricted Payment” is defined to mean any of the following:



          (a) any dividend or other distribution declared and paid on the Equity Interests of
ResCap or on the Equity Interests in any Subsidiary of ResCap that are held by, or
declared and paid to, any Person other than ResCap or a Subsidiary of ResCap or any GMAC
Party other than (i) dividends, distributions or payments made solely in Qualified Equity
Interests of ResCap; and (ii) dividends or distributions payable to ResCap or a
Subsidiary of ResCap or to other holders of Equity Interests of ResCap or a Subsidiary
(other than the GMAC Parties) on a pro rata basis;




          (b) any payment made by ResCap or any of its Subsidiaries to purchase, redeem,
acquire or retire any Equity Interests in ResCap or any of its Subsidiaries (including
any issuance of Indebtedness in exchange for such Equity Interests or the conversion or
exchange of such Equity Interests into or for Indebtedness) other than any such Equity
Interests owned by ResCap or any Subsidiary and other than the redemption of Equity
Interests of IB Finance for up to the fair market value thereof at the time of redemption
(it being understood that any excess over such fair market value which is paid shall be
deemed to be a Restricted Payment and shall be permitted to be paid to the extent
otherwise in compliance with Section 7.02(g));




          (c) any payment made by ResCap or any of its Subsidiaries (other than payments out
of the proceeds of, or in exchange for, the notes issued pursuant to the Exchange Offer
or Permitted Refinancing Indebtedness) to redeem, repurchase, defease (including in
substance or legal defeasance) or otherwise acquire or retire for value (including
pursuant to mandatory repurchase covenants), prior to any scheduled maturity, scheduled
sinking fund or mandatory redemption payment, Exchange Offer Notes, unsecured Permitted
Refinancing



Schedule 1.01-31









 






Indebtedness of Exchange Offer Notes or subordinated indebtedness of any
Obligor, except, in each case, payments of principal required in order to satisfy a
scheduled maturity date on the date such payment is due; and




          (d) any Investment by ResCap or any of its Subsidiaries in any GMAC Party.




     “Restricted Payment Maximum Amount” means the sum (without duplication) of (a) 50% of
the Consolidated Net Income (or, if Consolidated Net Income shall be a deficit, minus 100%
of such deficit) of ResCap accrued on a cumulative basis during the period (taken as one accounting
period) from the beginning of the first full fiscal quarter following the fiscal quarter in which
the Closing Date occurs and ending on the last day of the fiscal quarter immediately preceding the
date of such Restricted Payment; plus (b) 100% of the aggregate net cash proceeds received
by ResCap subsequent to the Closing Date either (i) as a contribution to its common equity capital
or (ii) from the issuance and sale (other than to a Subsidiary) of Qualified Equity Interests,
including Qualified Equity Interests issued upon the conversion of Indebtedness of ResCap, and from
the exercise of options, warrants or other rights to purchase such Qualified Equity Interests
(other than, in each case, Equity Interests or Indebtedness sold to a Subsidiary of ResCap);
minus (c) $859,000,000.



     “Retained Proceeds” means Net Cash Proceeds of Collateral Dispositions in an aggregate
lifetime amount of (i) $450 million following the Closing Date which the Obligors elect to treat as
Retained Proceeds in a Monthly Collateral Report or otherwise so designate by written notice to the
Lender Agent plus (ii) Net Cash Proceeds arising from the disposition of MHF Assets, as the
Obligors shall designate.



     “Returned Amount” has the meaning set forth in Section 13.12(d).



     “Revolving Loan Repayment Date” means the earliest to occur of (a) May 1, 2010; (b)
the date that the Loans are declared to be due and payable in accordance with Section
8.02(a); or (c) the date of the occurrence of an Event of Default described in Section
8.01(d); provided, however, that the Revolving Loan Repayment Date may be
extended or accelerated by the mutual agreement of each Lender and the Borrowers.



     “Revolving Loans” has the meaning set forth in Section 2.01(a).



     “RFC” means Residential Funding Company, LLC, and its successors in interest.



     “Sales Proceeds Accounts” means the accounts listed on Schedule X(b) of the Security
Agreement; provided that to the extent any Net Cash Proceeds are required to be held in the
European SPV Accounts under the Dutch Security Documents and the English Security Documents, the
European SPV Accounts shall constitute Sales Proceeds Accounts with respect to such funds for the
purposes of Section 4.02(a).



     “Scheduled Loan Repayment Date” means either (a) if the Exchange Offer is completed in
a manner satisfactory to the Lenders in their sole discretion with respect to the Floating Rate
Notes due 2008, 8.125% Notes due 2008, Floating Rate Notes due April 2009, Floating Rate Notes due
May 2009, and Floating Rate Subordinated Notes due 2009 specified in the Exchange Offer OM, May 1,
2010; or (b) March 31, 2009.



Schedule 1.01-32









 





     “Scratch and Dent Mortgage Loans” means mortgage loans acquired by the Borrowers or
their Subsidiaries in the ordinary course of business which are not saleable to FNMA, FHLMC, or in
the normal whole loan and securitization markets in the ordinary course of business as newly
originated, non-defective mortgage loans, which loans include but are not limited to Kick-Out
Loans, aged mortgage loans, nonperforming mortgage loans and mortgage loans which have defects in
their documentation or underwriting.



     “Second Lien Loan” means any Mortgage Loan secured by a second lien on or second
priority interest in a mortgaged property securing a mortgage note.



     “Security Agreement” means the First Priority Pledge and Security Agreement and
Irrevocable Proxy, dated of the date hereof, among the Borrowers and certain of their Affiliates,
as grantors thereunder, the Lender Agent and the First Priority Collateral Agent.



     “Security Documents” means the Security Agreement, the Intercreditor Agreement, the
Account Control Agreements, the Dutch Security Documents, the English Security Documents, all
documents delivered in satisfaction of the Post Closing Requirements, and all of the security
agreements, pledges, collateral assignments, mortgages, deeds of trust, trust deeds or other
instruments evidencing or creating or purporting to create any security interests in favor of
the First Priority Collateral Agent for its benefit and for the benefit of the Lender Parties.



     “Servicing Advance Exception End Date” means July 15, 2008.



     “Servicing Advance Exception Funds” means funds received in repayment of Primary
Collateral consisting of Servicing Corporate Advances with respect to expenses generally incurred
in connection with loss mitigation efforts and foreclosures on mortgage loans.



     “Servicing Advance Exception Limit” means, on any day, an amount equal to
$100,000,000.



     “Servicing Advance Factoring Sale” means a Collateral Disposition by any Obligor
consisting of a sale of Servicing T&I Advances, Servicing P&I Advances or Servicing Corporate
Advances under an Approved Servicing Advance Factoring Agreement.



     “Servicing Advances Accounts” means the Sales Proceeds Accounts designated as such in
accordance with Section 4.02(b).



     “Servicing Corporate Advances” means any advance relating to domestic Mortgage Loans
or REO Property made by an Obligor (made, except with respect to Servicing Corporate Advances which
constitute Substitute Collateral, pursuant to an Eligible Servicing Advances Agreement) (i) to
inspect, protect, preserve or repair properties that secure defaulted Mortgage Loans or that have
been acquired through foreclosure or deed in lieu of foreclosure or other similar action pending
disposition thereof, or for similar or related purposes, including, but not limited to, necessary
legal fees and costs expended or incurred by such servicer in connection with foreclosure,
bankruptcy, eviction or litigation actions, as well as costs to obtain clear title to such a
property, to protect the priority of the lien created by a Mortgage Loan on such a property, and to
dispose of properties taken through foreclosure or by deed in lieu thereof or other similar



Schedule 1.01-33









 




action,
or any other out of pocket expenses incurred as servicer and (ii) in the ordinary course of
business to maintain or maximize the value of a Mortgage Loan or REO Property.




     “Servicing P&I Advance” means any advance relating to domestic Mortgage Loans or REO
Property made by an Obligor (made, except with respect to Servicing P&I Advances which constitute
Substitute Collateral, pursuant to an Eligible Servicing Advances Agreement) of delinquent interest
and/or principal on the related Mortgage Loan to the extent such advance is funded out of the
servicer’s own funds and not using amounts held for future distribution.



     “Servicing T&I Advance” means any advance relating to domestic Mortgage Loans or REO
Property made by an Obligor (made in accordance with a contractual obligation and, except with
respect to Servicing T&I Advances which constitute Substitute Collateral, pursuant to an Eligible
Servicing Advances Agreement) with respect to a Mortgage Loan of real estate taxes and assessments,
or of hazard, flood or primary mortgage insurance premiums, required to be paid by the related
Payor under the terms of the related Mortgage Loan.



     “Significant Subsidiary” means any Subsidiary of ResCap (or group of Subsidiaries as
to which a specified condition applies) which meets any of the following conditions:



     (a) ResCap’s and its other Subsidiaries’ proportionate share of the total assets
(after intercompany eliminations) of the Subsidiary exceeds 10 percent of the total
assets of ResCap and its Subsidiaries on a consolidated basis as of the end of the most
recently completed fiscal year; or



     (b) the Subsidiary’s income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle exceeds 10
percent of such income of ResCap and its Subsidiaries on a consolidated basis for the
most recently completed fiscal year.



     For purposes of this definition, a “Subsidiary” shall mean a Person that is controlled by
ResCap directly or indirectly through one or more intermediaries. For purposes of making any
determination or calculations, this definition will be interpreted in accordance with the rules and
instructions of Rule 1-02 of Regulation S-X under the Securities Act as in effect on the date
hereof.



     “Solvent” means, with respect to the Obligors on a particular date, that on such date
(i) the most recently reported value of the assets pursuant to Section 7.01(f) of such
Obligor, taking into account the fair value of assets accounted for on a fair value basis and the
carrying value of other assets, is greater than the total amount of the most recently reported
liabilities of such Obligor (including the fair value of liabilities reported on a fair value
basis), (ii) after giving effect to each Loan, such Obligor is able to realize upon its assets and
pay its debts and other liabilities as they mature, assuming an orderly disposition, and (iii) such
Obligor does not have unreasonably small capital with which to conduct its business.



     “Sponsor” means Cerberus Capital Management, L.P., any of its affiliates and any
affiliated investment funds or managed accounts which are managed or advised by Cerberus Capital
Management, L.P. or any of its affiliates.



Schedule 1.01-34









 





     “Subject Asset” means an Asset which is an Eligible Asset or Primary Collateral.



     “Subsidiary” of any Person means any corporation, partnership, limited liability
company, association or other entity of which at least a majority of the outstanding stock or other
interest having by its terms ordinary voting power to elect a majority of the board of directors,
managers or trustees of such corporation, partnership, limited liability company, association or
other entity (irrespective of whether or not at the time stock or other interest of any other class
or classes of such Person shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person, or owned by one or more Subsidiaries of such
Person (provided that, it is understood that GMAC Bank is not a Subsidiary of either
Borrower).



     “Subsidiary Pledgor” means any Subsidiary that executes or delivers a Security
Document pursuant to the Facility Documents or otherwise becomes a party under a Security Document
as an obligor.



     “Substitute Collateral” has the meaning set forth in Section 2.08(b).



     “Supporting Assets” means, with respect to any Primary Collateral or Eligible Asset,
(a) if such Subject Asset consists of an Equity Interest in any Person, the assets of such Person;
(b) if such Subject Asset consists of a note or other security backed by financial assets and
related property, such assets and property; and (c) with respect to any Subject Asset, any other
asset or claim that constitutes a primary source of the funds expected to repay the investment in,
and return on, such Subject Asset.



     “Suretyship Liability” means any agreement, undertaking or arrangement by which any
Subsidiary guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss) any Indebtedness,
obligation or other liability of any other Subsidiary (other than by endorsements of instruments in
the course of collection), or guarantees the payment of dividends or other distributions upon the
shares of any other Subsidiary. The amount of any Subsidiary’s obligation in respect of any
Suretyship Liability will (subject to any limitation set forth therein) be deemed to be the
principal amount of the debt, obligation or other liability supported thereby.



     “Term Loan Agreement” has the meaning set forth in the Recitals.



     “Term Loans” has the meaning set forth in Section 2.01(c).



     “Term Loan Assignment” means the Master Assignment and Assumption Agreement dated as
of a date on or before June 6, 2008 among the Initial Lender and the Term Loan Lenders.



     “Term Loan Initial Balance” means $1,293,500,000.



     “Term Loan Lenders” means JPMorgan Chase Bank, N.A., as Administrative Agent,
Citibank, N.A., Bank of America, N.A., as syndication agent and the other financial institutions
that assign Term Loans to the Lenders, Barclays Bank PLC, Royal Bank of Scotland PLC and the other.



Schedule 1.01-35









 





     “Term Loan Repayment Date” means the earliest to occur of (a) July 28, 2008; (b) the
date that the Loans are declared to be due and payable in accordance with Section 8.02(a);
or (c) the date of the occurrence of an Event of Default described in Section 8.01(d);
provided, however, that the Term Loan Repayment Date may be extended or accelerated
by the mutual agreement of each Lender and the Borrowers.



     “Transfer” means any sale, securitization, financing, exchange, creation of lien,
pledge or encumbrance or other disposition by ResCap or any Subsidiary of any Primary Collateral or
Supporting Assets to any Person, provided that Transfers shall exclude any foreclosure by
ResCap or any of its Affiliates whereby such entity becomes the owner of REO Property.



     “UCC” means the Uniform Commercial Code as from time to time in effect in the State of
New York.



     “Unmatured Event of Default” means any event that, with the giving of notice or lapse
of time, or both, would become an Event of Default.



     “VA” means the U.S. Department of Veterans Affairs, an agency of the United States of
America, or any successor thereto.



     “VA Approved Lender” means those lenders which are approved by the VA to act as a
lender in connection with the origination of any mortgage loan subject to a VA Guaranty Agreement.



     “VA Guaranty Agreement” means the obligation of the United States to pay a specific
percentage of a mortgage loan (subject to a maximum amount) upon default of the mortgagor pursuant
to the Serviceman’s Readjustment Act, as amended.



     “Valuation Agent” means the Person selected by the Lender Agent from time to time in
its sole discretion whose responsibility is to calculate the Collateral Value from time to time.



     “Value” means (a) with respect to Conforming Loans, Jumbo Loans, Wet Loans, Second
Lien Loans or HELOC Loans that are being held for sale, HLTV Loans that are being held for sale,
Scratch and Dent Loans that are being held for sale and Financial Asset-Backed Securities, the
lower of market value or Par Value; and (b) with respect to Servicing P&I Advances, Servicing T&I
Advances, Servicing Corporate Advances, Other Receivables, IBG Assets, BCG Assets, Residual Rights,
Second Lien Loans that are being held for investment, REO Properties, Kick-Out Loans, Model Homes
and HLTV Loans that are being held for investment, the Carrying Value.



     “Voting Stock” means, with respect to any person, such person’s Capital Stock having
the right to vote for election of directors (or the equivalent thereof) of such person under
ordinary circumstances.



     “Wet Loan” means a Mortgage Loan for which the related mortgage file has not been
delivered to the applicable mortgage loan custodian.




Schedule 1.01-36









 








SCHEDULE 2.04




COLLATERAL VALUE CALCULATIONS




     The Collateral Value of the Assets comprising the Primary Collateral shall be calculated by
the Borrower on a monthly basis in accordance with Section 2.04. Upon such calculation,
the Valuation Agent shall promptly notify the Lender Agent and Borrowers of its calculation of
Collateral Value. In the event that the Valuation Agent is uncertain as to whether a particular
Asset constitutes Primary Collateral, or as to whether the documents relating to a particular
Assets is in form and substance satisfactory to the Lender Agent, the Valuation Agent shall rely on
the direction of the Lender Agent which direction shall be conclusive and binding on the Valuation
Agent absent manifest error. The Carrying Value of all Primary Collateral shall be included by the
Obligors in the Collateral Value Report.



     Capitalized terms used herein and not otherwise defined shall have the meanings given to them
in Schedule 1.01 to the Loan Agreement to which this Schedule 2.04 is attached. In
addition, the following terms shall have the meanings as indicated:



     “Collateral Value” means, as at any date of determination and solely with respect to
Primary Collateral, the sum of:



          (a) 90% of the Value of Conforming Loans plus




          (b) 80% of the Value of Jumbo Loans plus




          (c) 85% of the Value of Wet Loans plus




          (d) 50% of the Value of Second Lien Loans and HELOC Loans that are held for sale
plus




          (e) 50% of the Value of HLTV Loans that are held for sale plus




          (f) 50% of the Value of Scratch and Dent Loans that are held for sale plus




          (g) 50% of the Value of Financial Asset-Backed Securities plus




          (h) 80% of the Value of Servicing P&I Advances to the extent that the documents
relating to such Servicing P&I Advances are in form and substance satisfactory to the
Lender Agent and its counsel plus




          (i) 70% of the Value of Servicing T&I Advances to the extent that the documents
relating to such Servicing T&I Advances are in form and substance satisfactory to the
Lender Agent and its counsel plus




          (j) 70% of the Value of Servicing Corporate Advances to the extent that the
documents relating to such Servicing Corporate Advances and Corporate Advances are in
form and substance satisfactory to the Lender Agent and its counsel plus




Schedule 2.04-1









 








          (k) 50% of the Value of Other Receivables plus




          (l) 50% of the Value of IBG Assets plus




          (m) 50% of the Value of BCG Assets plus




          (n) 50% of the Value of Residual Rights plus




          (o) 50% of the Value of Second Lien Loans and HELOC Loans and are being held for
investment plus




          (p) 50% of the Value of Scratch and Dent Loans that are being held for investment
plus




          (q) 50% of the Value of Kick-Out Loans plus




          (r) 50% of the Value of HLTV Loans that are being held for investment, plus




          (s) 50% of the Value of REO Property owned by REO Owner or Model Homes owned by MHF
or its Subsidiary, provided in each case that such ownership interest has been recorded
in the applicable real estate records.





Schedule 2.04-2









 








SCHEDULE 5.01




CONDITIONS PRECEDENT TO THE INITIAL LOAN




          (a) This Agreement duly executed by the parties hereto;




          (b) A Revolving Note and a Term Note duly executed by the Borrowers payable to the order of
the Initial Lender;




          (c) The Security Documents (including each Dutch Security Document and English Security
Document), executed by the parties thereto (except to the extent listed on
Schedule 8.01(m));




          (d) The Intercreditor Agreement, executed in form and substance satisfactory to the Lender
Agent in its sole discretion;




          (e) This Initial Account Control Agreements executed in form and substance satisfactory to the
Lender Agent in its sole discretion;




          (f) The Term Loan Assignments duly executed the parties thereto;




          (g) Each other Facility Document, duly executed by the parties thereto;




          (h) A certificate of a secretary or assistant secretary of each Borrower, ResCap and each
other Guarantor, each Subsidiary Pledgor, and each other Obligor, each (i) certifying the names and
true signatures of the persons authorized on such party’s behalf to sign, as applicable, this
Agreement, the initial Note (if applicable) and the other Facility Documents to be delivered by
such party in connection herewith and (ii) attaching true and correct copies of the authorizing
resolutions of the foregoing in form and substance satisfactory to the Lender Agent;




          (i) A certificate of a Responsible Officer of each Borrower, ResCap and each other Guarantor,
each Subsidiary Pledgor, and each other Obligor, each certifying as to (i) the accuracy and
completeness of each of the representations and warranties contained in each Facility Document to
which such Borrower is a party (except for representations and warranties made in respect of
specific mortgage loans), (ii) the absence of any Default under such Facility Documents to which
such Borrower is a party as of the Closing Date and (iii) the absence of any event or circumstances
since December 31, 2007 that could reasonably be expected to give rise to a Material Adverse
Effect;




          (j) (i) The certificate of formation of RFC, duly certified by the Secretary of State of the
State of Delaware, as of a recent date acceptable to the Lender Agent, as well as a copy of its
limited liability company agreement, (ii) a certificate of formation of GMAC Mortgage, duly
certified by the Secretary of State of Delaware, as of a recent date acceptable to the Lender
Agent, as well as a copy of its limited liability company agreement, (iii) a certificate of
formation of ResCap, duly certified by the Secretary of State of Delaware, as of a recent date
acceptable to the Lender Agent, as well as a copy of its limited liability company agreement and
(iv) a certificate of incorporation or formation of each Borrower, each other Guarantor, each




Schedule 5.01-1









 





Subsidiary Pledgor and each other Obligor from the jurisdiction of its formation, together
with a copy of its limited liability company agreement or bylaws;




          (k) A (i) good standing certificate issued by the Secretary of State of the State of Delaware
certifying that RFC, GMAC Mortgage and ResCap are validly existing and in good standing and (ii)
good standing certificate issued by appropriate authority in the jurisdiction of each other
Obligor’s formation, certifying that such Obligor is validly existing and in good standing;




          (l) The filing of proper financing statements (Form UCC-1), naming each Borrower, each
Guarantor and each Subsidiary Pledgor (and if appropriate, each other relevant Obligor) as debtor
and the First Priority Collateral Agent as the secured party, or other, similar instruments or
documents, and the taking of all actions under the UCC or any Requirements of Law (including under
Dutch and English law) as necessary or reasonably requested by the Lender Agent to perfect the
First Priority Collateral Agent’s interest in the Collateral;




          (m) Opinions of external and/or in-house counsel for the Borrowers, the Guarantors and each
Subsidiary Pledgor and each other Obligor covering such matters as may be reasonably requested by
the Lender Agent;




          (n) Receipt by the Lenders of all fees due on or prior to the Closing Date as required under
the Agreement and any other fee letter entered into between the Lenders and the Borrowers
(including the reimbursement of all reasonable expenses relating to due diligence performed by the
Lenders prior to the Closing Date);




          (o) The Lenders shall be satisfied with the results of their due diligence with respect to the
Obligors and the Collateral;




          (p) The Lenders shall be satisfied in their sole and absolute discretion with the overall
results of the Exchange Offer and with the results of the Exchange Offer with respect to the
Floating Rate Notes due 2008, 8.125% Notes due 2008, Floating Rate Notes due April 2009, Floating
Rate Notes due May 2009, and Floating Rate Subordinated Notes due 2009 specified in the Exchange
Offer OM; and




          (q) All documents executed or submitted pursuant hereto by or on behalf of any Obligor shall
be reasonably satisfactory in form and substance to the Lender Agent; and the Lenders and their
counsel shall have received all information, approvals, opinions, documents or instruments as the
Lenders or their legal counsel may reasonably request.





Schedule 5.01-2









 








SCHEDULE 5.02




CONDITIONS PRECEDENT TO EACH LOAN




(including, with respect to paragraphs (b)-(e) inclusive,

to the automatic continuation of a Loan upon the conclusion of an Interest Period)




          (a) The Lender Agent shall have received a duly executed copy of the Borrower Funding Request
for such Loan in accordance with Section 2.03;




          (b) The making of such Loan, and the application of the proceeds thereof, shall not result in
the Outstanding Aggregate Loan Amount exceeding the Available Amount;




          (c) The making of such Loan, and the application of the proceeds thereof, shall not result in
a Borrowing Base Deficiency;




          (d) On the applicable Funding Date, the following statements shall be true (and the Borrowers
by delivering such Borrower Funding Request shall be deemed to have certified that):




          (e) the representations and warranties set of the Obligors in the Facility Documents are true
and correct in all material respects on and as of such day as though made on and as of such day and
shall be deemed to have been made on such day (except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case, such representation or
warranty shall have been true and correct as of such date);




          (f) Each Borrower is in compliance with all covenants set forth in Article VII;




          (g) All conditions precedent to the making of such Loan have been satisfied;




          (h) No Default has occurred and is continuing, or would result from the making or borrowing of
such Loan;




          (i) The Intercreditor Agreement is in full force and effect;




          (j) The amount of the initial Revolving Loan shall be not less than $25,000,000;




          (k) The Obligors have maintained all material licenses, business, governmental authorizations
and regulatory approvals held by them as of the Closing Date, without the imposition of material
changes, conditions or restrictions; and




          (l) The Lender Agent shall have received (i) with respect to the Initial Borrower Funding
Request, the initial Monthly Collateral Report; and (ii) with respect to any subsequent Borrower
Funding Request, an Interim Borrowing Base Report on or prior to the time required by Section
2.03.





Schedule 5.02-1









 








SCHEDULE 7.01(g)




GMAC LLC REQUIRED REPORTS




          Monthly Collateral Report, to be delivered by the tenth Business Day of each month,
comprising:




          1. Collateral Value Report




          2. Collateral Value Certificate




          3. Reinvestment Certificate




          4. Electronic File




Schedule 7.01(g)-1









 








SCHEDULE 7.01(m)




MASTER CUSTODIAL AGREEMENT

[See attached]





Schedule 7.01(m)-1















 







EXECUTION COPY




 





MASTER CUSTODIAL AGREEMENT




among




RESIDENTIAL FUNDING COMPANY, LLC, and

GMAC MORTGAGE, LLC,

as Sellers




THE VARIOUS FINANCIAL INSTITUTIONS

FROM TIME TO TIME PARTY HERETO,

as Financing Parties




and




WELLS FARGO BANK, NATIONAL ASSOCIATION, as Custodian




Dated as of June 4, 2008




 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 1. Financing Parties
	 	 	1	 
	Section 2. Definitions
	 	 	1	 
	Section 3. Delivery of Mortgage Files to Custodian
	 	 	4	 
	Section 4. The Custodian’s Receipt, Examination and Certification of Mortgage Files
and Issuance of Trust Receipt
	 	 	5	 
	Section 5. Possession of Mortgage Files
	 	 	6	 
	Section 6. Release of Custodian’s Mortgage Files
	 	 	7	 
	Section 7. Release for Payment in Full of Mortgage Asset
	 	 	9	 
	Section 8. Final Release
	 	 	9	 
	Section 9. Waiver by the Custodian
	 	 	9	 
	Section 10. Right of Inspection
	 	 	9	 
	Section 11. Custodian’s Fees and Expenses
	 	 	10	 
	Section 12. Termination of Agreement
	 	 	10	 
	Section 13. Reserved
	 	 	10	 
	Section 14. Limitation on Obligations of the Custodian
	 	 	10	 
	Section 15. Indemnification
	 	 	12	 
	Section 16. Representations and Warranties of Sellers
	 	 	12	 
	Section 17. Representations and Warranties of the Custodian
	 	 	13	 
	Section 18. Representations and Warranties of the Financing Parties
	 	 	14	 
	Section 19. Cumulative Rights
	 	 	14	 
	Section 20. Notices
	 	 	14	 
	Section 21. No Assignment or Delegation by the Custodian
	 	 	15	 
	Section 22. Reserved
	 	 	15	 
	Section 23. Controlling Law; Submission to Jurisdiction
	 	 	15	 
	Section 24. Agreement for the Exclusive Benefit of Parties
	 	 	15	 
	Section 25. Indulgences, Waivers, Amendments
	 	 	15	 
	Section 26. Titles Not to Affect Interpretation
	 	 	16	 
	Section 27. Provisions Separable
	 	 	16	 
	Section 28. Authorized Representatives
	 	 	16	 
	Section 29. Reproduction Of Documents
	 	 	16	 
	Section 30. Entire Agreement
	 	 	16	 






i 









 






	 	 	 	 	 
	 	 	Page	 
	Section 31. Counterparts
	 	 	17	 
	Section 32. Joint and Several Liability
	 	 	17	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	SCHEDULE I — FORM OF CUSTODIAL AGREEMENT SUPPLEMENT
	 	Schedule I-1
	 
	EXHIBITS
	 	 	 	 
	EXHIBIT A — TRUST RECEIPT
	 	 	A	 
	EXHIBIT B — LOAN DATA TRANSMISSION INFORMATION
	 	 	B	 
	EXHIBIT C — RESERVED
	 	 	C	 
	EXHIBIT D — LETTER TO CUSTODIAN RE: FINANCING PARTY’S TRUST RECEIPT
	 	 	D	 
	EXHIBIT E — REQUEST FOR RELEASE OF DOCUMENTS
	 	 	E	 
	EXHIBIT F — ATTORNEY’S BAILEE LETTER
	 	 	F	 
	EXHIBIT G — FORM OF NOTICE TO CUSTODIAN
	 	 	G	 
	EXHIBIT H — FORM OF TRANSMITTAL LETTER
	 	 	H	 
	EXHIBIT I — FORM OF LOST NOTE AFFIDAVIT
	 	 	I	 
	EXHIBIT J — AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
	 	 	J	 
	EXHIBIT K-1 — AUTHORIZED REPRESENTATIVES OF RESIDENTIAL FUNDING
COMPANY, LLC
	 	 	K-1	 
	EXHIBIT K-2 — AUTHORIZED REPRESENTATIVES OF GMAC MORTGAGE, LLC
	 	 	K-2	 








ii 









 







THIS MASTER CUSTODIAL AGREEMENT entered into as of June 4, 2008 (this “Agreement”), by and among
RESIDENTIAL FUNDING COMPANY, LLC and GMAC MORTGAGE, LLC (each a “Seller”, and collectively,
the “Sellers”), the VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO (the
“Financing Parties”) and WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Custodian”),
recites and provides:




RECITALS




     One or more Sellers and one or more Financing Parties may, from time to time, enter into
transactions in which such Sellers may sell, lease, pledge, transfer, assign or otherwise finance
certain Mortgage Assets and other assets with such Financing Parties. Each such transaction shall
be referred to herein as a “Transaction”;



     In connection with one or more Transactions, each related Seller desires to deposit with the
Custodian certain documents with respect to the Mortgage Assets or other assets the subject of such
Transaction, to be held by the Custodian as custodian for the related Financing Parties and their
respective assigns until otherwise instructed by the Financing Parties;



     By execution of one or more custodial agreement supplements in the form attached hereto as
Schedule I (each, a “Custodial Agreement Supplement”), the related Financing Parties or their
appointed agent will become a party hereto, and request the Custodian to act as custodian on behalf
of such Financing Parties for purposes of holding the Mortgage Assets and other assets in
connection with one or more Transactions with such Financing Parties;



     The Custodian is a national banking association, is otherwise authorized to act as Custodian
pursuant to this Agreement, and has agreed to act as custodian/bailee for hire for the Financing
Parties, all as more particularly set forth herein; and



     NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth,
and for good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:



     SECTION 1. Financing Parties.



     Any financial institution may from time to time become a party to this Agreement as a
Financing Party by entering into a Custodial Agreement Supplement with the related Sellers and the
Custodian. Upon its receipt of a duly executed Custodial Agreement Supplement, such Financing Party
shall be a party to this Agreement. Such Financing Party will remain a party hereto until the
earlier of (i) the termination of this Agreement in accordance with Section 12 hereof or (ii)
delivery by the related Seller of a Notice of Removal to the Custodian with a copy to such
Financing Party. Such Notice of Removal shall only be delivered by the related Seller in accordance
with the terms of the related Custodial Agreement Supplement and the agreements governing the
Transactions between such Seller and the related Financing Party.



     SECTION 2. Definitions.



     For the purposes of this Agreement, the following terms shall have the indicated meanings
unless the context or use indicates another or different meaning and intent, the definitions of
such terms are equally applicable to the singular and the plural forms of such terms, the words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular section or other subdivision, and section
references refer to sections of this Agreement.




 









 








     “Acceptable Attorney” shall mean any attorney-at-law to which a Seller has sent an
Attorney’s Bailee Letter, except for an attorney whom the related Financing Party has notified the
Custodian and the related Seller in writing that such attorney is not reasonably satisfactory to
such Financing Party.



     “Additional Mortgage Assets” shall mean Mortgage Assets proposed to be the subject of
a Transaction.



     “Affiliate” with respect to any Person, any “affiliate” of such Person, as such term
is defined in the Bankruptcy Code.



     “Agreement” shall mean this Master Custodial Agreement, as supplemented or amended
from time to time.



     “Assignment of Mortgage” with respect to any Mortgage, an assignment of the Mortgage,
notice of transfer or equivalent instrument, duly executed by the applicable Seller and in
recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect the assignment of the Mortgage.



     “Attorney’s Bailee Letter” shall mean a letter substantially in the form of Exhibit
F hereto.



     “Authorized Representative” shall have the meaning set forth in Section 28 hereof.



     “Bankruptcy Code” shall mean the United States Bankruptcy Code of 1978, as amended
from time to time.



     “Business Day” shall mean any day excluding (i) a Saturday or Sunday, and (ii) a day
on which the New York Stock Exchange, the Federal Reserve Bank of New York, the Custodian’s
offices, banking and savings and loan institutions in the State of New York, the City of New York
or the city or state in which the Custodian’s offices are located are closed.



     “Custodial Register” shall mean the register maintained by Custodian pursuant to
Section 5(e), which reflects as to each Mortgage Asset the Person to whom the related Trust Receipt
has been issued, and the Financing Party for whose benefit such Mortgage Asset is held.



     “Custodian” shall mean Wells Fargo Bank, National Association, or its successor
custodian.



     “Default” shall mean any event, that, with the giving of notice or the passage of time
or both, would become an Event of Default.



     “Delivery Deadline” shall have the meaning set forth in the applicable Custodial
Agreement Supplement.



     “Electronic Transmission” shall mean the delivery of information in a mutually
acceptable electronic format which may include pdf and Excel files. An Electronic Transmission
shall be considered written notice for all purposes hereof (except when a request or notice by
its terms requires manual execution).



     “Event of Default” with respect to any Transaction, shall have the meaning set forth
in the Transaction Documents.



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     “Examination Requirements” shall mean, with respect to any Transaction and the related
Mortgage File, the requirements specified in the related Custodial Agreement Supplement.



     “Exception” shall mean, with respect to any Mortgage Asset, any of the following: (a)
any variance from the requirements of Section 4(a) hereof with respect to the Mortgage Files
(taking into consideration the Seller’s right to deliver certain copies in lieu of original
documents) or (b) any Mortgage Asset with respect to which a Responsible Officer of the Custodian
receives written notice or has actual knowledge of a lien or security interest in favor of a Person
other than the Financing Party with respect to such Mortgage Asset.



     “Exception Report” means a list, in an electronic format acceptable to the related
Financing Party, the Custodian and each related Seller reflecting the Mortgage Assets held by the
Custodian for the benefit of the Financing Party and which includes codes indicating any Exceptions
with respect to each Mortgage Asset listed thereon. Each Exception Report shall set forth (a) the
Additional Mortgage Assets proposed to be included in a Transaction with the related Financing
Party, as well as the Mortgage Assets held by the Custodian hereunder for the benefit of such
Financing Party, which Mortgage Assets shall be listed separately from the Additional Mortgage
Assets, and (b) all Exceptions with respect thereto, with any updates thereto from the time last
delivered.



     “Financing Party” or “Financing Parties” shall have the meaning set forth in the first
paragraph of this Agreement.



     “Loan Data Transmission” shall mean, with respect to any Transaction and the related
Mortgage File, a schedule delivered by the related Seller to the Custodian, which may be in an
electronic format, of Mortgage Assets identifying such of the information set forth on Exhibit B
attached hereto as shall be designated in the related Custodial Agreement Supplement.



     “Loan Number” shall have the meaning set forth in Section 3(a) hereof.



     “Loan Schedule” shall mean a computer tape or other electronic medium generated by or
on behalf of each related Seller and delivered or transmitted to the related Financing Party which
provides information relating to the Mortgage Assets, including the information set forth in the
related Loan Data Transmission, in a mutually acceptable format.



     “MERS” shall mean Mortgage Electronic Registration Systems, Inc.



     “MERS Loan” shall mean any Mortgage Asset as to which the related Mortgage or
Assignment of Mortgage has been recorded in the name of MERS, as agent for the beneficial holder of
the Mortgage Note and which is identified as a MERS Loan on the related Loan Data Transmission.



     “MOM Loan” shall mean any Mortgage Asset as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Asset and its successors and assigns.



     “Mortgage” shall mean the mortgage, deed of trust or other instrument creating a first
or more junior lien on an estate in fee simple interest in real property securing the Mortgage
Note.



     “Mortgage Asset” shall mean a residential mortgage loan (i) that has a Mortgage File,
and (ii) that is a first or more junior lien on residential property evidenced by a Mortgage Note,
which is secured by a Mortgage.



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     “Mortgage File” shall mean a file consisting of the Required Documents specified in
the related Custodial Agreement Supplement with respect to the applicable Transaction.



     “Mortgage Note” shall mean, with respect to any Mortgage Asset, the related promissory
note together with all riders thereto and amendments thereof or other evidence of indebtedness of
the related Mortgagor.



     “Mortgaged Property” shall mean the real property securing repayment of a Mortgage
Asset.



     “Mortgagor” shall mean the obligor on a Mortgage Note.



     “Notice of Removal” shall mean a notice substantially in the form exhibited to, and
delivered in connection with, the related Custodial Agreement Supplement.



     “Person” shall mean any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political subdivision thereof.



     “Request for Release” shall have the meaning set forth in Section 6 hereof.



     “Required Documents” shall mean, with respect to any Transaction and the related
Mortgage File, those documents relating to a Mortgage Asset specified in the related Custodial
Agreement Supplement.



     “Responsible Officer” with respect to the Custodian, shall mean any officer assigned
to the Corporate Trust Division (or any successor thereto), including any vice president, assistant
vice president, trust officer, any assistant secretary, or any other officer of the Custodian
customarily performing functions similar to those performed by any of the above designated officers
and having direct responsibility for the administration of this Agreement and designated on Exhibit
J attached hereto (which will be updated from time to time by Custodian and provided to the
Financing Parties and Sellers).



     “Seller” or “Sellers” shall have the meaning set forth in the first
paragraph of this Agreement.



     “Transaction Documents” shall mean, with respect to any Transaction, the agreements
governing the Transactions between the related Seller and the related Financing Party.



     “Trust Receipt” shall mean an instrument substantially in the form of Exhibit A hereto
and any other Trust Receipt as defined in the applicable Custodial Agreement Supplement.



     “Trust Receipt Delivery Deadline” shall have the meaning set forth in the applicable
Custodial Agreement Supplement.



     SECTION 3. Delivery of Mortgage Files to Custodian.



     (a) With respect to each Transaction, the related Seller represents that it has, prior to the
Delivery Deadline, delivered to the Custodian (i) all Required Documents for each related Mortgage
Asset and (ii) a Loan Data Transmission. All documents delivered to the Custodian shall have been
placed by the related Seller or its representative in an appropriate file folder, properly secured,
and clearly marked with the name of the Mortgagor and the loan number (the “Loan Number”).




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     (b) Subject to the provisions of subsection (a) of this Section 3, delivery of a Loan Schedule
to the applicable Financing Party and a Loan Data Transmission to the Custodian by the related
Seller shall be deemed to be certification that it has delivered and released to the Custodian the
Mortgage File for each Mortgage Asset listed thereon.



     (c) Each Mortgage File shall consist of the Required Documents specified in the related
Custodial Agreement Supplement with respect to the applicable Transaction. Each Seller
hereby represents and warrants that any copy of a Required Document that is delivered to
the Custodian is a true, correct and complete copy of the original document.



     (d) Custodian shall hold all Mortgage Files as custodian and bailee for hire for the exclusive
benefit of the applicable Financing Party, and shall not act upon written instructions of any
Financing Party or any Seller to deliver the Mortgage Assets other than as expressly provided in
this Agreement.



     SECTION 4. The Custodian’s Receipt, Examination and Certification of Mortgage Files and
Issuance of Trust Receipt.



     (a) The Custodian shall commence examination of the Required Documents delivered prior to
11:00 a.m. (New York City time) on any Business Day promptly upon receipt, and if the Custodian has
determined that all the Required Documents are included in the Mortgage Files delivered to it, and
that such related documents on their faces satisfy the Examination Requirements set forth in the
Custodial Agreement Supplement, not later than the Trust Receipt Delivery Deadline, the Custodian
shall make available to the applicable Financing Party a Trust Receipt relating to such Mortgage
Assets, by posting the same on a secure website to which the Financing Party shall have been given
access, or by forwarding a copy to the related Financing Party via Electronic Transmission in a
form acceptable to the related Financing Party. If upon examination of the Required Documents
relating to any Mortgage File, the Custodian determines that such documents do not satisfy the
above requirements, is unable to confirm that such documents satisfy such requirements, or the
related Seller cannot cure any noted Exception, the Custodian shall mark such Mortgage Asset as an
Exception on the Exception Report, and not later than the Trust Receipt Delivery Deadline, post the
Exception Report on a secure website to which the Financing Party shall have been given access, or
forward a copy to the related Financing Party via Electronic Transmission in a form acceptable to
the related Financing Party. As of the date of the Trust Receipt, the Custodian represents to the
applicable Financing Party that, subject to the Exception Report, all of the Required Documents are
included in the Mortgage Files delivered to it, that such related documents on their faces satisfy
the Examination Requirements set forth in the Custodial Agreement Supplement in all respects and
are in the possession and control of the Custodian. In addition, upon reasonable written request of
the
applicable Financing Parties, the Custodian shall deliver to the applicable Financing Parties
or their respective designees, one or more Trust Receipts and Exception Reports, as applicable,
with respect to all Mortgage Assets then subject to Transactions with such Financing Parties
(separate Trust Receipts shall be issued for such categories of Mortgage Assets as the applicable
Financing Parties may from time to time reasonably request in writing). The original copies of such
Trust Receipts shall be delivered to the applicable Financing Parties at the notice addresses
specified in the related Custodial Agreement Supplements by overnight delivery using a nationally
recognized insured overnight delivery service.



     (b) Under no circumstances shall the Custodian be obligated to verify the authenticity of any
signature (except those signature provided in Exhibit K hereto and those signatures as may be
provided in Exhibit D of the related Custodial Agreement Supplement) on any of the documents
received or examined by it in connection with this Agreement or the authority or capacity of any
person to execute or issue any such document, nor shall the Custodian be responsible for the value,
form, substance, validity, perfection, priority, effectiveness or enforceability of any of such
documents.




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     (c) Any provision of this Agreement to the contrary notwithstanding, the related Seller shall
notify the Custodian of the need to examine a Mortgage File and deliver a related Trust Receipt
within a mutually agreed upon time frame prior to the date on which such Trust Receipt is required
to be delivered.



     (d) The schedule of Mortgage Assets attached to any Trust Receipt shall be amended by the
Custodian as applicable and each subsequently transmitted schedule of Mortgage Assets shall
automatically supersede each prior schedule of Mortgage Assets with respect to such Trust Receipt,
and shall render all previously transmitted schedules of Mortgage Assets null and void. The
applicable Financing Parties may request the Custodian to provide a paper copy of the most recent
schedule of Mortgage Assets transmitted by the Custodian via Electronic Transmission or posted to a
secure website to which such Financing Parties shall have been given access with respect to a
related Trust Receipt. The applicable Financing Parties may also request Custodian to deliver to
such Financing Parties or their respective designees a schedule of Mortgage Assets with respect to
all Mortgage Assets then subject to Transactions with such Financing Parties. Except as
specifically provided in this Section 4, the Custodian shall be under no duty to review, inspect or
examine such documents to determine that any of them are enforceable or appropriate for their
prescribed purpose or that they are other than what they purport to be on their face. The related
Seller shall be solely responsible for providing each and every document required for each Mortgage
File to the Custodian in a timely manner and for completing or correcting any missing, incomplete
or inconsistent documents, and the Custodian shall not be responsible or liable for taking any such
action, causing such Seller or any other Person or entity to do so or notifying any Person (other
than the related Financing Party to the extent specifically required in this Agreement) that any
such action has or has not been taken. It is specifically agreed that the Custodian shall have no
responsibility for determining whether any document is valid and binding, whether the text of any
assignment or endorsement is in proper or recordable form, whether any document has been recorded
in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment
is permitted in any applicable jurisdiction.



     (e) No Trust Receipt shall be valid for any purpose unless substantially in the form set forth
in Exhibit A attached hereto or in any Exhibit of any Custodial Agreement Supplement
and executed by manual signature of an Authorized Representative of the Custodian. Such
signature upon any Trust Receipt shall be conclusive evidence, and the only evidence, that such
Trust Receipt has been duly delivered under this Agreement. Trust Receipts bearing the manual
signatures of individuals who were, at the time when such signatures were affixed, Authorized
Representatives of the Custodian shall bind the Custodian, notwithstanding that such individuals
have ceased to be so authorized prior to the delivery of those Trust Receipts. Each Trust Receipt
shall have attached thereto a Loan Data Transmission with an Exception Report with respect to the
applicable Mortgage Assets and shall otherwise comply with Section 4(e) of this Agreement.



     (f) Upon the delivery of a Trust Receipt by the Custodian to the related Financing Party in
accordance with the terms of this Agreement, any prior Trust Receipt relating to the same Mortgage
Assets shall be cancelled without any further action of any party and be deemed void.



     SECTION 5. Possession of Mortgage Files.



     (a) Possession of Mortgage Files on Behalf of Financing Party. The Custodian shall,
following the related transfer pursuant to Section 3 above, hold all documents received by
it for the sole and exclusive use and benefit of the applicable Financing Party and as agent and
bailee of and custodian solely for such Financing Party for all purposes. The Custodian shall
segregate and retain continuous possession and custody of the Mortgage Files in secure and
fire-resistant facilities in accordance with customary standards for such custody. The Custodian
shall also make appropriate notations in the




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Custodian’s books and records reflecting that the Mortgage Files are subject to the control of the
applicable Financing Party. The Custodian shall not release any portion of the Mortgage Files to
any Seller or to any other party without the prior written authorization of the applicable
Financing Party, unless otherwise required to do so by a final, nonappealable order of a court of
competent jurisdiction.




     (b) Upon surrender of the Trust Receipt by the related Financing Party to the Custodian, such
Financing Party may issue instructions regarding the Mortgage Assets designated in the applicable
Trust Receipt, including instructions, if an Event of Default under the related Transaction has
occurred (and not otherwise except as provided in Section 13(c)), to withdraw Mortgage Assets.



     (c) In the event a Trust Receipt is lost, destroyed or otherwise unavailable for surrender to
the Custodian, the applicable Financing Party will present to the Custodian documentation in the
form attached as Exhibit D hereto. Upon receipt by the Custodian of such documentation,
such Financing Party will have the right to issue instructions regarding the Mortgage Assets
covered by a Trust Receipt without surrender of the related Trust Receipt.



     (d) The Custodian shall cause to be kept at its corporate trust office a register (the
“Custodial Register”) in which, subject to such reasonable regulations as it may prescribe, the
Custodian shall reflect the control of Mortgage Assets as confirmed by Trust Receipts as herein
provided. The Custodial Register shall be deemed to contain proprietary information and Custodian,
Sellers and the applicable Financing Party shall have access to such information.



     (e) In the event that (i) a Financing Party, any related Seller, or the Custodian shall
be served by a third party with any type of levy, attachment, writ or court order with respect
to any Mortgage File or any document included within a Mortgage File or (ii) a third party shall
institute any court proceeding by which any Mortgage File or a document included within a Mortgage
File shall be required to be delivered otherwise than in accordance with the provisions of this
Agreement, the party receiving such service shall promptly deliver or cause to be delivered to the
other applicable parties to this Agreement copies of all court papers, orders, documents and other
materials concerning such proceedings. The Custodian shall, to the extent the Custodian, in its
sole discretion, concludes is permitted by law, continue to hold and maintain all the Mortgage
Files that are the subject of such proceedings pending a final, nonappealable order of a court of
competent jurisdiction permitting or directing disposition thereof. Upon final determination of
such court, the Custodian shall release, according to the provisions of this agreement, such
Mortgage File or any document included within such Mortgage File as directed by the related
Financing Parties or the related Seller, as applicable, which shall give a direction consistent
with such determination. Expenses of the Custodian (including reasonable attorneys’ fees and
related expenses) incurred as a result of such proceedings shall be borne by the related Seller.
Notwithstanding anything to the contrary in this paragraph, the Custodian will not be liable for
taking any action, or not taking any action, that the Custodian, in its sole discretion, concludes
is required by law.



     SECTION 6. Release of Custodian’s Mortgage Files.



     (a) From time to time and as appropriate for the foreclosure or servicing of any of the
Mortgage Assets by the related Seller or its designee and until the Custodian is otherwise notified
by the applicable Financing Party, which notice shall be given by such Financing Party only
following the occurrence of an Event of Default under the related Transaction, the Custodian is
hereby authorized, upon the written request of such Seller (which may be in an electronic format)
and consent and acknowledgement of such Financing Party in the form of Exhibit E attached
hereto (a “Request for Release”), which consent and acknowledgement shall not be unreasonably
withheld or delayed and shall be provided the same Business Day the receipt of the request is
received by such Financing Party, to release to such Seller or its designee the related Mortgage
File set forth in such Request for Release



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together with a transmittal letter substantially in the form attached hereto as Exhibit H (a
“Transmittal Letter”) or an Attorney’s Bailee Letter substantially in the form attached hereto as
Exhibit F, as applicable, or any documents contained therein, set forth in such receipt to such
Seller; provided, that if the Mortgage File is released to the related Seller or its designee for
any purpose other than one of the reasons set forth in boxes 1, 2, 3, 4 or 5 of Exhibit E attached
hereto, such Seller shall ensure that any document released to such Seller or its designee,
pursuant to a Request for Release shall be returned to Custodian no later than ten (10) calendar
days from the date on such Request for Release, other than any Mortgage Asset as to which the
related Mortgage File has been released pursuant to Section 6(c) to an Acceptable Attorney pursuant
to an Attorney’s Bailee Letter substantially in the form attached hereto as Exhibit F. All
documents so released to the related Seller or its designee shall be held by it in trust for the
benefit of the related Financing Party. Such Seller or its designee shall return to the Custodian
the Mortgage File or such documents when its need therefor in connection with servicing no longer
exists.




     (b) From time to time and as appropriate for the sale to a third party purchaser of any of the
Mortgage Assets and until the Custodian is otherwise notified in writing by the applicable
Financing Party, which notice shall be given by such Financing Party only following the occurrence
of an Event of Default under the related Transaction, the Custodian is hereby
authorized, upon receipt of a Request for Release, to release or cause to be released to the
related third party purchaser the Mortgage File or the documents of the related Mortgage File set
forth in such Request for Release together with a Transmittal Letter, which shall be acknowledged
and agreed to by such third party or its designee; provided, that if any such Request for Release
involves the Custodian delivering more than 200 Mortgage Files to a third party (other than to a
trustee in connection with a securitization of the Mortgage Assets) such Request for Release shall
be made on not less than two (2) Business Day’s prior notice; provided further, that any document
released to a third party purchaser pursuant to a Request for Release shall be returned to
Custodian no later than ten (10) calendar days from the date on such transmittal letter, or such
longer period as the applicable Financing Parties may consent to, unless prior thereto Custodian
receives notice from the Financing Party that it has received the “Payoff Amount” set forth
therein. Promptly upon receipt by the Financing Party of the full amount set forth in such
transmittal letter as the “Payoff Amount”, the Financing Party shall notify the Custodian thereof
in writing.



     (c) All Mortgage Files or documents of Mortgage Files released by the Custodian to the related
Seller or, at the related Seller’s written direction, the Seller’s designee pursuant to this
Section 6 shall be held by the related Seller or the Seller’s designee, as applicable, in trust for
the benefit of the applicable Financing Party. The related Seller or the Seller’s designee, as
applicable, shall return to the Custodian, the Mortgage File or other such documents of Mortgage
Files when the need therefor in connection with such foreclosure or servicing no longer exists (but
in any event no later than ten (10) calendar days from the date on such Request for Release),
unless the Mortgage Loan related to any Mortgage Asset is to be foreclosed upon or liquidated, in
which case, the Acceptable Attorney to whom the documents were released under cover of an
Attorney’s Bailee Letter, shall deliver to the Custodian a transmittal letter which has been
acknowledged by such Acceptable Attorney.



     (d) Each of the Sellers and the Custodian agrees that, at the time any Request for Release of
Mortgage Files is made to the Custodian under this Agreement, the related Financing Party shall be
notified of such release, and a copy of any written Request for Release shall be furnished to such
Financing Party by the related Seller. If the related Seller has not received the related Mortgage
Files within ten (10) Business Days after delivering a Request for Release to the Custodian, then
the related Seller shall so notify such Financing Party.



     (e) Following written notification by the applicable Financing Party (which notice to the
Custodian may be by facsimile) to the Custodian that an Event of Default under a related
Transaction has occurred and is continuing, the Custodian shall not release, or incur any liability
to the related Seller or




8









 







any other Person for refusing to release, any item of any Mortgage File the subject of the
Transaction under which such Event of Default has occurred to the related Seller or any other
Person without the express prior written consent and at the direction of the applicable Financing
Party.




     (f) The Custodian shall monitor any release of the Mortgage Files under this Section 6 only to
track the period of time which has elapsed for any such release of such Mortgage Files.



     SECTION 7. Release for Payment in Full of Mortgage Asset.



     Upon the payment in full of any Mortgage Asset, and upon receipt by the Custodian of a Request
for Release from the related Seller and acknowledged by the applicable Financing Party certifying
that such payment in full has been received, and without further authorization from the Financing
Parties, the Custodian shall promptly release the related Mortgage File to the related Seller or,
at such Seller’s written direction, the Seller’s Authorized Representative. The related Seller
shall provide notice to the applicable Financing Party of any such release.



     SECTION 8. Final Release.



     Each related Seller shall notify the related Financing Parties and the Custodian in writing of
the Mortgage Files to be released upon termination or expiration of a Transaction, at least two (2)
Business Days prior to the date of such termination or expiration, as applicable. Upon receipt by
the Custodian of written notice from the applicable Financing Party in the form of Exhibit G hereto
(or via facsimile or e-mail confirmation from an Authorized Representative) stating that the
related Financing Parties no longer have any right, title or interest in the related Mortgage
Assets, the Custodian shall release to the related Seller or its designee the Mortgage Files with
respect to such Mortgage Assets, and shall deliver to the related Financing Parties an amended
Trust Receipt with a schedule of Mortgage Assets attached thereto, listing all of the Mortgage
Assets still subject to a Transaction with such Financing Party.



     SECTION 9. Waiver by the Custodian.



     Notwithstanding any other provisions of this Agreement, the Custodian shall not at any time
exercise or seek to enforce any claim, right or remedy, including any statutory or common law
rights of set-off, if any, that the Custodian might otherwise have against all or any part of a
Mortgage File or the proceeds thereof. The Custodian warrants that it currently holds, and during
the existence of this Agreement shall hold, no adverse interest, by way of a security interest or
otherwise, in any Mortgage Asset and hereby waives and releases any such interest which it may have
in any Mortgage Asset as of the date hereof. The Mortgage Assets shall not be subject to any
security interest, lien or right of set-off by Custodian or any third party claiming through
Custodian (other than in the ordinary course of business), and Custodian shall not pledge,
encumber, hypothecate, transfer, dispose of, or otherwise grant any third party interest in, the
Mortgage Assets. Custodian, at its own expense shall take all action necessary to defeat and
release any security interest claimed by the Custodian, other than an interest of a Financing
Party.



     SECTION 10. Right of Inspection.



     Upon at least one Business Day’s written notice to the Custodian, the related Financing Party,
the related Seller, or their duly authorized representatives, may at any time, during ordinary
business hours, inspect and examine the Mortgage Files and any other documents, records and papers
in the possession of or under the control of the Custodian relating to any or all of the Mortgage
Assets at such place or places where such Mortgage Files are deposited. The examining party shall
be responsible for any reasonable expenses in connection with such examinations. Upon the written
request of the related Seller or




9









 








Financing Party, the Custodian shall provide the related Seller or Financing Party, as the case may
be, at such requesting party’s expense, with copies of the Mortgage Notes, Mortgages,
Assignment of Mortgages and other documents relating to one or more of the Mortgage Assets.




     SECTION 11. Custodian’s Fees and Expenses.



     The Custodian hereby acknowledges that GMAC Mortgage, LLC has agreed to pay all fees due and
owing to, and except as otherwise provided herein, any expenses incurred by the Custodian
associated with the Mortgage Files delivered by each Seller under this Agreement. The fees due to
the Custodian for its services hereunder shall be as set forth in a separate letter agreement
between the Custodian and GMAC Mortgage, LLC. In addition to the fees referred to in the two
foregoing sentences, GMAC Mortgage, LLC has agreed to pay all out-of-pocket expenses incurred by
the Custodian in connection with the review of each Mortgage File delivered by each Seller or its
agent and the Custodian’s issuance of a Trust Receipt relating thereto. The Financing Parties shall
not have any liability or obligation to pay any fees or expenses of the Custodian, and the duties
of the Custodian hereunder shall be independent of each Seller’s performance of its obligations to
the Custodian in respect of such fees.



     SECTION 12. Termination of Agreement.



     This Agreement shall become effective on and as of the date hereof and shall terminate upon
the written consent of the parties hereto, provided that, no such termination shall be effective if
any Custodial Agreement Supplement shall be outstanding without the consent of the applicable
Financing Parties thereto.



     In the event of termination of this Agreement, the Custodian shall follow the reasonable
instructions of the Financing Parties with respect to the disposition of the respective Mortgage
Files. Concurrently with the transfer and release of all of the Mortgage Files by the Custodian,
the related Trust Receipts shall be deemed void and cancelled.



     SECTION 13. Reserved.



     SECTION 14. Limitation on Obligations of the Custodian.



     (a) Custodian and its Affiliates, directors, officers, agents, counsel, attorneys-in-fact, and
employees shall be liable for its or their failure to perform its or their obligations under this
Agreement, its breach of any of the representations or warranties contained herein and its own or
such person’s negligence, bad faith or willful misconduct. Notwithstanding the foregoing sentence,
in no event shall the Custodian or its Affiliates, directors, officers, agents, counsel,
attorneys-in-fact, and employees be held liable for any special, indirect, punitive or
consequential damages resulting from any action taken or omitted to be taken by it or them
hereunder or in connection herewith even if advised of the possibility of such damages. The
provisions of this Section 14 shall survive the resignation or removal of the Custodian and the
termination of this Agreement.



     (b) The Custodian shall have no duties or obligations other than those specifically set forth
herein, and no further duties or obligations shall arise by implication or otherwise. The Custodian
agrees to use its best judgment and good faith in the performance of such obligations and duties
and shall incur no liability to Sellers for its acts or omissions hereunder, except as may result
from its negligence, bad faith or willful misconduct. The Custodian shall also be entitled to rely
(and shall be protected in relying) upon the advice of its external legal counsel and to rely upon
any written notice, document, correspondence, request or directive received by it from the
Financing Parties or Sellers, as the case may be, that the Custodian believes to be genuine and to
have been signed or presented by the proper and duly




10











 




authorized officer or representative thereof, and shall not be obligated to inquire as to the
authority or power of any Person so executing or presenting such documents or as to the
truthfulness of any statements set forth therein. No provision of this Agreement shall require the
Custodian to expend or risk its own funds or otherwise incur financial liability in the performance
of its duties hereunder if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity is not reasonably assured to it.




     (c) The Custodian shall at its own expense maintain at all times during the existence of this
Agreement and keep in full force and effect (i) fidelity insurance, (ii) theft and loss of
documents insurance, (iii) forgery insurance, and (iv) errors and omissions insurance. All such
insurance shall be in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks which act as the Custodian in similar transactions. The
Custodian shall, upon written request, provide to Sellers, or to any other Person as Sellers shall
direct, a certificate signed by an authorized officer of the Custodian certifying that the
foregoing insurance policies are in full force and effect. The Custodian shall use its best efforts
to ensure that such insurance shall not terminate prior to receipt by each Financing Party by
registered mail of 30 days’ prior written notice of any such termination.



     (d) The Custodian shall not be responsible for preparing or filing any reports or returns
relating to federal, state or local income taxes with respect to this Agreement, other than for the
Custodian’s compensation or for reimbursement of expenses.



     (e) The Custodian shall not be responsible or liable for, and makes no representation or
warranty with respect to, the validity, adequacy or perfection of any lien upon or security
interest in any Mortgage Asset.



     (f) The Custodian shall not be responsible for delays or failures in performance resulting
from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes,
lockouts, riots, acts of war or terrorism, epidemics, governmental or regulatory actions, fire,
communication line failures, computer viruses, power failures, or earthquakes (each a “Force
Majeure Event”). The Custodian agrees that it will use commercially reasonable efforts to mitigate
the effects of the Force Majeure Event. The Custodian further agrees that it shall give notice
(including a reasonable description of such Force Majeure Event) to the other parties hereto within
a reasonable time of the Custodian having notice or knowledge of such Force Majeure Event and use
its best efforts to resume performance as promptly as practicable under the circumstances.
Custodian further represents that it has developed and implemented a business continuity plan as
required by its regulators.



     (g) The duties and obligations of the Custodian shall only be such as are expressly set forth
in this Agreement or as set forth in a written amendment to this Agreement executed by the parties
hereto or their successors and assigns. In the event that any provision of this Agreement implies
or requires that action or forbearance be taken by a party, but is silent as to which party has the
duty to act or refrain from acting, the parties agree that the Custodian shall not be the party
required to take the action or refrain from acting. In no event shall the Custodian have any
responsibility to ascertain or take action except as expressly provided herein.



     (h) Nothing in this Agreement shall be deemed to impose on the Custodian any duty to qualify
to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Asset is or
may be held by the Custodian from time to time hereunder, and (ii) any jurisdiction where its
ownership of property or conduct of business requires such qualification and where failure to
qualify could have a material adverse effect on the Custodian or its property or business or on the
ability of the Custodian to perform it duties hereunder.




11











 





     (i) The Custodian shall have no duty to ascertain whether or not any cash amount
or payment has been received by the Financing Parties, the Sellers or any third
person.



     SECTION 15. Indemnification.



     Each Seller agrees to reimburse, indemnify and hold the Custodian and its directors, officers,
agents and employees harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, or out-of-pocket expenses of any kind or nature
whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of this Agreement or any action taken or
not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, or out-of-pocket expenses were imposed on, incurred by or
asserted against the Custodian because of the breach by the Custodian of its obligations hereunder
including, without limitation, any breach of the representations and warranties contained herein,
or caused by the negligence, bad faith or willful misconduct on the part of the Custodian or any of
its directors, officers, agents or employees. The foregoing indemnification shall survive any
resignation or removal of the Custodian or the termination or assignment of this Agreement.



     In the event that the Custodian fails to produce a Mortgage Note, Assignment of Mortgage or
any other document related to a Mortgage Asset that was in its possession pursuant to Section 3
within two (2) Business Days after written request therefor by the related Financing Party or the
related Seller in accordance with the terms and conditions of this Agreement; provided that (i)
Custodian previously delivered to such Financing Party a Trust Receipt which did not list such
document as an Exception as of the related date of delivery to the Custodian; (ii) such document is
not outstanding pursuant to a Request for Release in the form attached hereto as Exhibit E; and
(iii) such document was held by the Custodian on behalf of the related Seller or the related
Financing Party, as applicable (a “Failure to Deliver”), then the Custodian shall (a) with respect
to any missing Mortgage Note, promptly and upon request deliver to the related Financing Party or
the related Seller, a Lost Note Affidavit in the form attached hereto as Exhibit I and (b) with
respect to any missing document related to such Mortgage Asset, including but not limited to a
missing Mortgage Note, indemnify the related Seller or the related Financing Party in accordance
with the succeeding paragraph of this Section 15.



     The Custodian agrees to indemnify and hold the Financing Parties and the Sellers harmless
against liabilities, obligations, losses, damages, actions, judgments, suits, costs, or
out-of-pocket expenses, including reasonable attorney’s fees, that may be imposed on, incurred by,
or asserted against it or them relating to or arising out of a Failure to Deliver or the
Custodian’s negligence, bad faith or willful misconduct. Notwithstanding the foregoing, it is
specifically understood and agreed that the Custodian shall not be obligated under the preceding
sentence to any party to the extent that any such claim, liability, loss, action, suit or
proceeding or other expense, fee or charge shall have been caused by reason of any negligent act,
negligent failure to act, bad faith or willful misconduct on the part of such party or by reason of
such party’s breach of its obligations hereunder. The foregoing indemnification shall survive any
termination or assignment of this Agreement. In no event shall the Custodian or its directors,
officers, agents or employees be held liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or any of them hereunder or in
connection herewith even if advised of the possibility of such damages.



     SECTION 16. Representations and Warranties of Sellers.



     Each Seller covenants to the related Financing Party as of the date that any Mortgage File
documents are released to a Seller pursuant to a Request for Release that:



12









 





     (a) if the Request for Release has been submitted for the release of a Mortgage Asset that has
been paid in full, all amounts received in connection with the payment in full of the related
Mortgage Asset have been credited to the related Financing Party as provided for in the agreements
relating to the applicable Transaction, prior to or simultaneously with the release of such files;



     (b) if item No. 3 has been checked on the Request for Release, the appropriate amount of funds
has been credited to the related Financing Party as provided for in the agreements relating to the
applicable Transaction; and



     (c) if item No. 4 has been checked on the Request for Release, all proceeds of foreclosure,
insurance, condemnation or other liquidation have been finally received and credited to the related
Financing Party as provided for in the agreements relating to the applicable Transaction.



     Each Seller further represents and warrants that this Agreement has been duly authorized,
executed and delivered by such Seller and constitutes a legal, valid and binding obligation of such
Seller enforceable in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity (whether enforcement is sought in a
proceeding in equity or at law).



     SECTION 17. Representations and Warranties of the Custodian.



     Custodian (and any successor custodian as of the appointment of such custodian) hereby
represents and warrants as of the date hereof and as of each date it delivers an executed Trust
Receipt that:



     (a) the Custodian is (i) a national banking association duly organized, validly existing and
in good standing under the laws of the United States of America and (ii) duly qualified and in good
standing and in possession of all requisite authority, power, licenses, permits and franchises in
order to execute, deliver and comply with its obligations under the terms of this Agreement;



     (b) it is qualified to act as a custodian and to perform its duties hereunder and it does not
believe, nor does it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;



     (c) it is not controlled by, under common control with or otherwise affiliated with or related
to the Sellers or any affiliate of Sellers and covenants and agrees with the Financing Parties that
prior to any such affiliation in the future, it shall notify the Financing Parties;



     (d) the Custodian has the power and authority and the legal right to execute and deliver, and
to perform its obligations under, this Agreement, and has taken all necessary action to authorize
its execution, delivery and performance of this Agreement;



     (e) no consent or authorization of, filing with, or other act by or in respect of, any
arbitrator or Governmental Authority and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Custodian) is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement;



     (f) to Custodian’s knowledge after due inquiry, there is no litigation pending or threatened
which, if determined adversely to Custodian, would adversely affect the execution, delivery or



13









 




enforceability of this Agreement, or any of the duties or obligations of Custodian hereunder, or
which would have a material adverse effect on the financial condition of Custodian;




     (g) the execution, delivery and performance of this Agreement and the original Trust Receipt
issued hereunder, have been duly authorized by all necessary corporate action and the execution and
delivery of this Agreement by the Custodian in the manner contemplated herein and the performance
of and compliance with the terms hereof by it will not (i) to the best of the Custodian’s
knowledge, violate, contravene or create a default under any applicable laws, licenses or permits,
or (ii) violate, contravene or create a default under any charter document or bylaw of the
Custodian or to the best of the Custodian’s knowledge any contract, agreement, or instrument to
which the Custodian or by which any of its property may be bound and will not result in the
creation of any lien, security interest or other charge or encumbrance upon or with respect to any
of its property;



     (h) this Agreement has been duly executed and delivered on behalf of the Custodian and
constitutes a legal, valid and binding obligation of the Custodian enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity (whether enforcement is sought in a proceeding in equity or at law); and



     (i) The Custodian shall promptly notify the applicable Financing Party and Sellers if (i) the
related Seller fails to pay any amount due to the Custodian under this Agreement or any separate
fee agreement related hereto; (ii) a Responsible Officer of the Custodian has actual knowledge that
any mortgage, pledge, lien, security interest or other charge or encumbrance has been placed on the
Mortgage Files other than in the ordinary course of business; or (iii) the representations,
warranties and covenants contained in this Section 17 were to become untrue or incorrect at any
time during the term of this Agreement.



     SECTION 18. Representations and Warranties of the Financing Parties.



     Each Financing Party represents and warrants that this Agreement has been duly authorized,
executed and delivered by such Financing Party and constitutes a legal, valid and binding
obligation of such Financing Party enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(whether enforcement is sought in a proceeding in equity or at law).



     SECTION 19. Cumulative Rights.



     The rights, powers and remedies of the Financing Parties under this Agreement shall be in
addition to all rights, powers and remedies given to the Financing Parties by virtue of any statute
or rule of law, the agreements relating to their respective Transactions, as applicable, or any
other agreement, all of which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing such Financing Parties’ right, title and interest in
the Mortgage Assets.



     SECTION 20. Notices.



     All demands, notices and communications hereunder (including, without limitation, Trust
Receipts) shall be in writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, return receipt requested, or, if by other means, including telex, electronic
mail or other telecommunication device capable of transmitting or creating a written record directly
to the office of the recipient, when received by the recipient party at the address specified in
the related Custodial Agreement



14









 




Supplement, or at such other addresses as may hereafter be furnished to the other parties by like
notice; provided that notices to the Sellers shall only be provided by registered or certified
mail. Any such demand, notice or communication hereunder shall be deemed to have been received on
the date delivered to or received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt, or in the case of telex,
electronic mail or other telecommunication device, the date noted on the confirmation of such
transmission).




     SECTION 21. No Assignment or Delegation by the Custodian.



     The Custodian shall not assign, transfer, pledge or grant a security interest in any of its
rights, benefits or privileges hereunder nor delegate or appoint any other person to perform or
carry out any of its duties, responsibilities or obligations under this Agreement; any act or
instrument purporting to effect any such assignment, transfer, pledge, grant, delegation or
appointment shall be void.



     SECTION 22. Reserved.



     SECTION 23. Controlling Law; Submission to Jurisdiction.



     This Agreement shall be governed by the internal laws of the State of New York, without giving
effect to the conflict of laws principles thereof (except for Section 5-1401 of the New York
General Obligations Law). SELLERS, CUSTODIAN, AND THE FINANCING PARTIES EACH IRREVOCABLY CONSENT TO
THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT. THE PARTIES HEREBY SUBMIT TO, AND WAIVE ANY OBJECTION THEY MAY HAVE TO PERSONAL
JURISDICTION AND VENUE IN, THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, OVER ANY DISPUTES ARISING OUT OF OR RELATING TO THIS
AGREEMENT.



     SECTION 24. Agreement for the Exclusive Benefit of Parties.



     This Agreement is for the exclusive benefit of the parties hereto, and their respective
successors and permitted assigns, and shall not be deemed to create or confer any legal or
equitable right, remedy or claim upon any other Person whatsoever. A Financing Party may assign its
rights hereunder as provided in the agreements relating to its respective Transactions. No Seller
may assign its rights or obligations hereunder without the prior consent of the related Financing
Party. The interest of any Financing Party hereunder shall be exclusively with respect to the
related Mortgage Assets the subject of one or more Transactions with such Financing Party, and
shall not be with respect to any Mortgage Assets not the subject of one or more Transactions with
such Financing Party. Any Financing Party which is party hereto, but which from time to time shall
not have any Mortgage Assets the subject of a Transaction with such Financing Party, and in respect
of which the Custodian shall not then be holding one or more related Mortgage Files, shall
nevertheless continue to have rights hereunder until a Notice of Removal shall have been delivered
by the related Seller to the Custodian.



     SECTION 25. Indulgences, Waivers, Amendments.



     Neither the failure nor any delay on the part of a party hereto to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with



15









 




respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with
respect to any other occurrence. No amendment of this Agreement shall be effective unless the same
shall be in writing and signed by all the parties hereto, provided, that, no such Amendment shall
be effective if any Custodial Agreement Supplement shall not have been terminated pursuant to the
terms thereof without the consent of the applicable Financing Parties thereto, and provided,
further that, any Financing Party may agree to amend its related Custodial Supplemental Agreement
as provided for therein, and no consent of any other Financing Party shall be required with respect
thereto. No waiver of any provision of this Agreement, nor consent to any departure herefrom, shall
be effective unless the same shall be in writing and signed by all the parties hereto, and then
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given, provided, that, no such waiver or consent shall be effective if any
Custodial Agreement Supplement shall not have been terminated pursuant to the terms thereof without
the consent of the applicable Financing Parties thereto, and provided, further that, any Financing
Party may grant such waivers or consents as are provided for in its related Custodial Supplemental
Agreement, and no consent of any other Financing Party shall be required with respect thereto.




     SECTION 26. Titles Not to Affect Interpretation.



     The titles of sections and subsections contained in this Agreement are for convenience only,
and they neither form a part of this Agreement nor are they to be used in the construction or
interpretation hereof.



     SECTION 27. Provisions Separable.



     The provisions of this Agreement are independent of and separable from each other, and no
provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other provision or provisions may be invalid or unenforceable in whole or in part.



     SECTION 28. Authorized Representatives.



     Each individual designated as an authorized representative of the Custodian, each Seller and
each Financing Party (each, an “Authorized Representative”), is authorized to give and receive
notices, requests and instructions and to deliver certificates and documents in connection with
this Agreement on behalf of the Custodian, the related Seller or its designee and the related
Financing Party, respectively, and the specimen signature for each such Authorized Representative
of the Custodian and the Sellers initially authorized hereunder is
set forth on Exhibits J, K-1 and
K-2, respectively. The specimen signature for each such Authorized Representative of the related
Financing Party is set forth in the applicable Custodial Agreement Supplement. From time to time,
Custodian, the Sellers and the Financing Parties may, by delivering to the others a revised
exhibit, change the information previously given pursuant to this Section 28, but each of the
parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of
a superseding exhibit.



     SECTION 29. Reproduction Of Documents.



     This Agreement and all documents relating thereto, including, without limitation, (i)
consents, waivers and modifications which may hereafter be executed, and (ii) certificates and
other information previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar process. The parties
agree that any such reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in existence and whether
or not such reproduction was made by a party in the regular



16









 




course of business, and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.




     SECTION 30. Entire Agreement.



     This Agreement, together with the Exhibits and other writings referred to herein or delivered
pursuant hereto, constitute the entire agreement and understanding of the parties with respect to
the matters and transactions contemplated by this Agreement and supersede any prior agreement and
understandings with respect to those matters and transactions. With respect to each Financing
Party, this Agreement shall include in addition the terms of the related Custodial Agreement
Supplement.



     SECTION 31. Counterparts.



     For the purpose of facilitating the execution of this Agreement as herein provided and for
other purposes, this Agreement may be executed simultaneously in any number of counterparts, each
of which counterpart shall be deemed to be an original, and such counterparts shall constitute and
be one and the same instrument.



     SECTION 32. Joint and Several Liability.



     The liability of the Sellers hereunder is joint and several, including, but not limited to,
the Sellers’ liability under Section 15 of this Agreement. The Sellers hereby: (a) acknowledge and
agree that the applicable Financing Party and the Custodian shall have no obligation to proceed
against one Seller before proceeding against the other Seller, (b) waive any defense to their
obligations under this Agreement, based upon or arising out of the disability or other defense or
cessation of liability of one Seller versus the other or of any other Person, and (c) waive any
right of subrogation or ability to proceed against any Person.



17









 





     IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date set forth
above.



	 	 	 	 	 	 	 
	 	 	RESIDENTIAL FUNDING COMPANY, LLC, 
 as a Seller	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Melissa White
 

Melissa White
	 	 
	 

	 	Title:
	 	Asst. Treasure	 	 
	 
	 	 	 	 	 	 
	 	 	GMACMORTGAGE, LLC,

Seller as a	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 	 	/s/ Melissa White	 	 
	 

	 	Name
	 	 

Melissa White
	 	 
	 

	 	Title:
	 	Asst. Treasure	 	 






S-l




 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, 

as Custodian	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Steve Naasz
 

Steve Naasz
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






S-2









 









SCHEDULE I




FORM OF CUSTODIAL AGREEMENT SUPPLEMENT




     This CUSTODIAL AGREEMENT SUPPLEMENT, dated as of [___], 20[___] (this “Supplement”) by
and among [SELLER] (the “Seller”)1, [FINANCING PARTY] (the “Financing Party”) and WELLS
FARGO BANK NATIONAL ASSOCIATION (the “Custodian”), recites and provides:



RECITALS




     [Seller] and [Financing Party] have entered into that certain [describe financing transaction,
eg. Master Repurchase Agreement, dated as of [___], 2008]



     Pursuant to the terms of the Master Custodial Agreement, dated as of June 4, 2008 (the “Master
Custodial Agreement”), by and among Residential Funding Company, LLC and GMAC Mortgage, LLC, as
sellers, the Financing Parties from time to time party thereto, as financing parties and Wells
Fargo Bank, National Association, as Custodian, the parties hereto wish to enter into this
Supplement, to provide for the specific terms regarding the delivery and subsequent holding of
certain Required Documents with respect to the Mortgage Assets subject to each Transaction entered
into pursuant to the [describe financing arrangement], which Supplement, together with the Master
Custodial Agreement shall constitute the entire agreement among the parties hereto with respect to
the matters described herein and therein.



     NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth,
and for good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:



     SECTION 1. Definitions.



     For the purposes of this Supplement, the following terms shall have the indicated meanings
unless the context or use indicates another or different meaning and intent, the definitions of
such terms are equally applicable to the singular and the plural forms of such terms, the words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplement as a
whole and not to any particular section or other subdivision. Unless otherwise specified or
required by the context, section references are to sections in the Master Custodial Agreement. All
terms used herein and not defined shall have the respective meanings set forth in the Master
Custodial Agreement. If there is any inconsistency between this Supplement and the Master Custodial
Agreement, this Supplement shall control.



     “Authorized Representative” shall have the meaning set forth in Section 13 hereof.



     “Delivery Deadline” shall mean [define, eg. “not later than 11:00 a.m. New York City time (i)
on the Business Day preceding the proposed date of a Transaction if fewer than 300 Mortgage Files
are delivered; (ii) on the second Business Day preceding the proposed date of a Transaction if more
than 300 but fewer than 600 Mortgage Files are delivered; and (iii) on a date mutually agreed upon between the Custodian and the Seller preceding the proposed date of
a Transaction if more than 600 Mortgage Files are delivered”].



 





1 May add multiple Sellers if agreed.




Schedule I-1




 









 








     "Examination Requirements” shall mean, with respect to any Transaction and the related
Mortgage File, those requirements set forth on Exhibit B attached hereto.



     "Notice of Removal” shall mean a notice substantially in the form of Exhibit C hereto.



     "Required Documents” shall mean, with respect to any Transaction and the related Mortgage
File, those documents relating to a Mortgage Asset set forth on Exhibit A attached hereto.



     "Trust Receipt Delivery Deadline” shall mean [define, eg. “not later than 11:00 am New York
City time (i) on the Business Day after the date on which the Mortgage Files were delivered to the
Custodian by the Seller if fewer than 300 Mortgage Files were delivered; (ii) on the second
Business Day after the date on which the Mortgage Files were delivered to the Custodian by the
Seller if more than 300 but fewer than 600 Mortgage Files were delivered to the Custodian by the
Seller; and (iii) on a date mutually agreed upon between the Seller and the Custodian after the
date on which the Mortgage Files were delivered to the Custodian by the Seller if more than 600
Mortgage Files were delivered to the Custodian by the Seller"].



     SECTION 2. Delivery of Mortgage File to Custodian.



     (a) For the purposes of Section 3(a) of the Master Custodial Agreement, the Mortgage File with
respect to each Transaction entered into between the Seller and the Financing Party, shall consist
of the Required Documents set forth on Exhibit A attached hereto.



     (b) For the purposes of Section 3(b) of the Master Custodial Agreement, the Loan Data
Transmission with respect to each Mortgage Asset subject to a Transaction entered into between the
Seller and the Financing Party shall consist of the following information set forth on Exhibit B to
the Master Custodial Agreement:



     [Define, eg. “all items on Exhibit B”, or “all items on Exhibit B, other than items (b) and
(c).”]



     (c) For the purposes of Section 3 of the Master Custodial Agreement, each party
hereto agrees:



     [Specify any additional modifications to Section 3 of the Master Custodial Agreement].



     SECTION 3. The Custodian’s Receipt, Examination and Certification of Mortgage Files and
Issuance of Trust Receipt.



     For the purposes of Section 4 of the Master Custodial Agreement:



     (a) the Examination Requirements with respect to the Required Documents included in each
Mortgage File relating to a Transaction entered into between the Seller and the Financing Party
shall consist of the requirements set forth on Exhibit B attached hereto.



     (b) Each party hereto agrees:



     [Specify any additional modifications to Section 4 of the Master Custodial Agreement].




     SECTION 4. Notices.



     [(a)] Each party’s address for any demands, notices and communications is as follows:



I-2




 









 








	 	 	 
	 

	 	If to the Seller:
	 
	 	 
	 

	 	[Address]
	 

	 	[Address]
	 

	 	Attention: [___]
	 

	 	Telephone: [___]
	 

	 	Facsimile: [___]
	 

	 	E-mail: [___]
	 
	 	 
	 

	 	If to the Financing Party:
	 
	 	 
	 

	 	[Address]
	 

	 	[Address]
	 

	 	Attention: [___]
	 

	 	Telephone: [___]
	 

	 	Facsimile: [___]
	 

	 	E-mail: [___]
	 
	 	 
	 

	 	If to the Custodian:
	 
	 	 
	 

	 	Wells Fargo Bank, National Association
	 

	 	1015
10th Ave SE
	 

	 	Minneapolis, Minnesota 55414
	 
	 	 
	 

	 	Attention: Mortgage Document Custody
	 

	 	Telephone: (612) 667-1015 
	 

	 	Facsimile: (612) 667-1068 
	 

	 	E-mail: steve.j.naasz@wellsfargo.com






[If the Seller or the Financing Party is not organized under the laws of the United States
or a State thereof, an agent for service of process may be appointed using the following:]




     [(b) The [Seller][Financing Party] has appointed [insert name and address] as its agent for
service of process. The [Seller][Financing Party] consents to service of process upon such agent
for and on its behalf in respect of any action, suit or proceeding that may be brought against the
[Seller][Financing Party].



     SECTION 5. Ratification of Master Custodial Agreement; Entire Agreement.



     As supplemented by this Supplement, the Master Custodial Agreement is in all respects ratified
and confirmed and the Master Custodial Agreement as so supplemented by this Supplement shall be
read, taken and construed as one and the same instrument. The Master Custodial Agreement as
supplemented by this Supplement, together with the Exhibits and other writings referred to herein
or delivered pursuant hereto, constitute the entire agreement and understanding of the parties with
respect to the matters and transactions contemplated by this Supplement and supersedes any prior
agreement and understandings with respect to those matters and transactions.



     SECTION 6. Notice of Removal.



     This Supplement shall become effective on and as of the date hereof and shall terminate upon
delivery of a Notice of Removal substantially in the form of
Exhibit C hereto by the Seller to the



I-3




 









 







Custodian. The Seller and the Financing Party agree that the Seller shall only deliver a Notice of
Removal following termination of the [define financing transaction]. Promptly after the Custodian’s
receipt of a Notice of Removal from the Seller, payment in full of all amounts owing to the
Financing Party under the [define financing transaction], and written certification to the
Custodian of such payment in full, the Custodian shall deliver to related Seller all the Mortgage
Files formerly the subject of Transactions with the Financing Party and then held by the Custodian,
and this Supplement shall thereupon terminate.




     SECTION 7. Controlling Law.



     This Supplement shall be governed by the internal laws of the State of New York, without
giving effect to the conflict of laws principles thereof (except for Section 5-1401 of the New York
General Obligations Law).



     SECTION 8. Agreement for the Exclusive Benefit of Parties.



     This Supplement is for the exclusive benefit of the parties hereto, and their respective
successors and assigns, and shall not be deemed to create or confer any legal or equitable right,
remedy or claim upon any other Person whatsoever.



     SECTION 9. Indulgences, Amendments.



     Neither the failure nor any delay on the part of a party hereto to exercise any right, remedy,
power or privilege under this Supplement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No amendment of this Supplement
shall be effective unless the same shall be in writing and signed by all the parties hereto. No
waiver of any provision of this Supplement, nor any consent to any departure herefrom, shall be
effective unless the same shall be in writing and signed by the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given.



     SECTION 10. Titles Not to Affect Interpretation.



     The titles of sections and subsections contained in this Supplement are for convenience only,
and they neither form a part of this Supplement nor are they to be used in the construction or
interpretation hereof.



     SECTION 11. Provisions Separable.



     The provisions of this Supplement are independent of and separable from each other, and no
provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other provision or provisions may be invalid or unenforceable in whole or in part.



     SECTION 12. Authorized Representatives.



     Each individual designated as an authorized representative of the Financing Party (each, an
"Authorized Representative”), is authorized to give and receive notices, requests and instructions
and to deliver certificates and documents in connection with the Master Custodial Agreement and this Supplement on behalf of the Financing Party and the specimen signature for
each Authorized



I-4




 









 







Representative of the Financing Party initially authorized hereunder is set forth on Exhibit D
hereto. From time to time the Financing Party may, by delivering to the Seller and the Custodian a
revised exhibit, change the information previously given pursuant to this Section 12, but each of
the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt
of a superseding exhibit.




     SECTION 13. Counterparts.



     For the purpose of facilitating the execution of this Supplement as herein provided and for
other purposes, this Supplement may be executed simultaneously in any number of counterparts, each
of which counterpart shall be deemed to be an original, and such counterparts shall constitute and
be one and the same instrument.



     [If the Financing Party is a bankruptcy-remote entity, include the following sections]




     SECTION 14. Non-Petition Agreement.



     Notwithstanding any prior termination of this Supplement or the Master Custodial Agreement,
each of the Custodian and the Seller agrees that it shall not, prior to the date which is one year
and one day (or if longer, the applicable preference period then in effect) after the payment in
full of any rated obligations of the Financing Party, acquiesce, petition or otherwise, directly or
indirectly, invoke or cause the Financing Party to invoke the process of any governmental authority
for the purpose of commencing or sustaining a case against the Financing Party under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Financing Party or any
substantial part of its property or ordering the winding up or liquidation of the affairs of the
Financing Party. The terms of this Section 14 shall survive any termination of this Supplement or
the Master Custodial Agreement.



     SECTION 15 Limited Recourse.



     Notwithstanding any provisions contained in this Supplement or the Master Custodial Agreement
to the contrary, the Financing Party shall not, and shall not be obligated to, pay any amount due
hereunder or under the Master Custodial Agreement, including, without limitation, any fees, costs
or expenses due pursuant to this Supplement or the Master Custodial Agreement unless the Financing
Party has received funds which may be used to make such payment. Any amount which the Financing
Party does not pay pursuant to the operation of the preceding sentence shall not constitute a claim
(as defined in § 101 of the Bankruptcy Code) against or obligation of the Financing Party for any
such insufficiency unless and until the Financing Party has received funds which may be used to
make such payment. The terms of this Section 15 shall survive any termination of this Supplement or
the Master Custodial Agreement.



I-5




 









 








     IN WITNESS WHEREOF, the parties have entered into this Supplement as of the date set forth
above.



	 	 	 	 	 	 	 
	 	 	[SELLER]

as Seller	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[FINANCING PARTY]

as a Financing Party	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION
as Custodian	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






I-6




 









 








EXHIBIT A to Custodial

Agreement Supplement




REQUIRED DOCUMENTS




[Insert applicable deliverable documents]




A-1





 












 





EXHIBIT B to Custodial

Agreement Supplement




EXAMINATION REQUIREMENTS




[Insert applicable examination requirements]




B-1 









 





EXHIBIT C to Custodial

Agreement Supplement




FORM OF NOTICE OF REMOVAL




Wells Fargo Bank, National Association,
   as
Custodian

1015 10th Ave. SE

Minneapolis, Minnesota 55414

Attention: Mortgage Document Custody




     Reference is made to the Master Custodial Agreement, dated as of June 4, 2008, among
Residential Funding Company, LLC and GMAC Mortgage, LLC, the Financing Parties from time to time
party thereto and Wells Fargo Bank, National Association (the “Master Custodial
Agreement”), and to the Custodial Agreement Supplement by and among [Seller], [Financing
Party] and you, dated as of [                    ], 20[___] (the “Custodial Agreement Supplement”).



     You are hereby notified that as of [___] [a.m./p.m] [New York City] time on [                    ],
20[___], all outstanding Transactions by [Seller] with [Financing Party] have been terminated, and
pursuant to Section 1 of the Master Custodial Agreement, [Financing Party] is no longer a
party to such agreement.



     Capitalized terms used herein and not otherwise defined shall have the respective meanings
set forth in the Master Custodial Agreement.



	 	 	 	 	 	 	 
	 	 	[SELLER]	 	 
	 	 	   as Seller	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






C-1 









 





EXHIBIT D to Custodial

Agreement Supplement




AUTHORIZED REPRESENTATIVES OF FINANCING PARTY




	 	 	 	 	 
	Name/Title:	 	Specimen Signature:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 


	 	 

	 	 
	 
	 	 	 	 
	 


	 	 

	 	 
	 
	 	 	 	 
	 


	 	 

	 	 
	 
	 	 	 	 
	 


	 	 

	 	 
	 
	 	 	 	 
	 


	 	 

	 	 






D-1 









 





EXHIBIT A




TRUST RECEIPT




[Date]




[DESIGNATED AGENT]





Re: Master Custodial Agreement, dated as of June 4, 2008, among Residential Funding
Company, LLC and GMAC Mortgage, LLC, the Financing Parties from time to time party
thereto and Wells Fargo Bank, National Association, as Custodian



Gentlemen:




     In accordance with the provisions of Section 4 of the above-referenced Master Custodial
Agreement (the “Custodial Agreement”), the undersigned, as Custodian, hereby certifies
that as to each Mortgage Asset described in the Loan Data Transmission, a copy of which is
attached hereto, it has reviewed the Mortgage File and has determined that, except as set forth
on the Exception Report attached hereto, (i) all Required Documents to be delivered to it
pursuant to the Custodial Agreement are in its possession, (ii) such documents have been reviewed
by it in accordance with the review procedures in the Custodial Agreement and appear regular on
their face and relate to such Mortgage Asset, and (iii) based on its examination of the foregoing
documents, such documents on their face satisfy the Examination Requirements set forth in [define
applicable Custodial Agreement Supplement].



     The Custodian hereby confirms that it is holding each such Mortgage File as agent and bailee
of and custodian for and for the exclusive use and benefit of [Financing Party] pursuant to the
terms of the Custodial Agreement.



     This Trust Receipt is not a negotiable instrument.



     The Custodian will accept and act on instructions with respect to the Mortgage Assets only
upon surrender of this receipt at its Corporate Trust Office, [ADDRESS], Attention:                     .



     All initially capitalized terms used herein shall have the meanings ascribed to them in the
above-referenced Custodial Agreement.



	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 	 	as Custodian	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






A-1 









 





[RELEASE]

Released for transfer to [Residential Funding Company, LLC] [GMAC Mortgage, LLC]




	 	 	 	 	 	 	 
	 	 	[                    ]	 	 
	 	 	Designated Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






A-2 









 





EXHIBIT B




LOAN DATA TRANSMISSION INFORMATION




FIELDS TO BE PROVIDED IN LOAN DATA TRANSMISSION




	 	 	 	 	 
	• CUSTOMER

	 	• POOLNUM [Finance Facility Code]
	 	• COLL_KEY [Loan ID]
	 
	 	 	 	 
	• ALT_ID [Servicing Number]

	 	• BORROWER [Last Name]
	 	• BORR1FIRST
	 
	 	 	 	 
	• BORR1MID

	 	• CLOSED [Note Date]
	 	• MATURITY [Maturity Date]
	 
	 	 	 	 
	• MODIFYDATE

	 	• RATE [Note Rate]
	 	• LNAMOUNT [Orig Principal Amt]
	 
	 	 	 	 
	• STATE

	 	• CITY
	 	• ZIP
	 
	 	 	 	 
	• ADDRESS

	 	• MERSMIN
	 	• MERSFLAG
	 
	 	 	 	 
	• ISMOM [MOM Indicator]

	 	• UDF_CHR2 [REO Indicator]
	 	• UDF_CHR1 [Asset Type]
	 
	 	 	 	 
	• BOOKPAGE [Lien Position]

	 	• TERM [MI Required (Y/N)]
	 	• LTV






B-1 









 





EXHIBIT C




[RESERVED]




C-1 









 








EXHIBIT D




LETTER TO CUSTODIAN

RE: FINANCING PARTY’S TRUST RECEIPT




Wells Fargo Bank, National Association,
   as
Custodian

1015 10th Ave SE

Minneapolis, Minnesota 55414

Attention: Mortgage Document Custody





Re: Master Custodial Agreement, dated as of June 4, 2008, among Residential Funding
Company, LLC, GMAC Mortgage, LLC, the Financing Parties from time to time party thereto
and Wells Fargo Bank, National Association, as Custodian



Gentlemen:




     On [date] you issued a trust receipt in the name of [DESIGNATED AGENT] evidencing
entitlement to the Mortgage Assets described on Schedule A hereto and held by you as Custodian.
You issued that receipt pursuant to the above-referenced Master Custodial Agreement. The trust
receipt has been [lost, destroyed, etc.]. Every effort was made to recover the receipt; those
efforts were unsuccessful. It is, therefore, now unavailable for surrender to you.



     At the time of its [loss, destruction, etc.], the receipt was held by us under [the terms of
original issue, special endorsement]. Since its [issuance, endorsement] to us, we have not sold,
assigned, transferred, pledged or otherwise granted an interest in the trust receipt that has not
been released prior to the date hereof. Accordingly, this letter authorizes you to act on our
instructions regarding such Mortgage Assets without surrender of the receipt to you.



     We hereby agree to indemnify and hold you harmless against any loss, liability or expense
that you may incur as a result of acting on our instructions regarding such Mortgage Assets
without our surrender of the receipt to you, excluding, however, any such loss, liability or
expense caused by your negligence or willful misconduct or any special, indirect and
consequential damages.



     If the trust receipt is ever recovered by us, we will immediately notify you, cancel the
receipt and surrender the receipt to you.



	 	 	 	 	 	 	 
	 	 	[                    ]	 	 
	 	 	Designated Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






D-1 









 





EXHIBIT E




REQUEST FOR RELEASE OF DOCUMENTS




To: Wells Fargo Bank, National Association

     as Custodian

1015 10th Ave SE

Minneapolis, MN 55414





Re: Master Custodial Agreement, dated as of June 4, 2008, among Residential Funding
Company, LLC, GMAC Mortgage, LLC, the Financing Parties from time to time party thereto
and Wells Fargo Bank, National Association, as Custodian



     In connection with the administration of Mortgage Assets held by you as Custodian for the
Financing Parties from time to time pursuant to the above-referenced Master Custodial Agreement,
as supplemented by [define applicable Custodial Agreement Supplement], we hereby request the
release, and acknowledge receipt, of the [specify documents] for the Mortgage Assets described
below, for the reason indicated.



Mortgagor’s Name Address and Zip Code:




Mortgage Asset Number:




Reason for Requesting Documents (check one):





	—1.	 	Mortgage Asset paid in full or delinquent. (The Custodian shall delete the Mortgage Asset from
the applicable Loan Data Transmission.)
	 
	—2.	 	Mortgage Asset in foreclosure or otherwise released for servicing.
	 
	—3.	 	Appropriate amount of funds credited to [Financing Party] pursuant to agreement relating to
the applicable Transaction.
(The Custodian shall delete the Mortgage Asset from the applicable Loan
Data Transmission.)
	 
	—4.	 	Mortgage Asset liquidated by                     . (The Custodian is hereby authorized to delete the
Mortgage Asset from the applicable Loan Data Transmission.)
	 
	—5.	 	Other Servicing Reasons
	 
	—6.	 	Potential sale of Mortgage Asset to third party purchaser





     If box 1, 3, 4, 5 or 6 above is checked, and if all or part of the Mortgage Files were
previously released to [Residential Funding Company, LLC] or [GMAC Mortgage, LLC], please release
to [Residential Funding Company, LLC] or [GMAC Mortgage, LLC] its previous request and receipt on
file with you, as well as any additional documents in your possession relating to the specified
Mortgage Asset.



     [Residential Funding Company, LLC] [GMAC Mortgage, LLC] understand and agree that all
documents delivered to [Residential Funding Company, LLC] [GMAC Mortgage, LLC]
pursuant to this request for release (other than with respect to Items 1, 2, 3, 4 or 5)
shall be returned to the Custodian no



E-1 









 







later than ten (10) calendar days from the date hereof. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Master Custodial Agreement.



	 	 	 	 	 	 	 
	 	 	[RESIDENTIAL FUNDING COMPANY, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	Date:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[GMAC MORTGAGE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	Date:
	 	 

	 	 
	 

	 	 	 	 

	 	 






E-2 









 






	 	 	 	 	 
	Acknowledged and Agreed:	 	 
	 
	 	 	 	 
	[FINANCING PARTY]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






E-3 









 






EXHIBIT F




ATTORNEY’S BAILEE LETTER

[Letterhead of Seller]




                     ___, ___



Name of Attorney

[Address]



Custodian:

Wells Fargo Bank, National Association

1015 10th Ave SE

Minneapolis, Minnesota 55414

Attention: Mortgage Document Custody

Tel. No. (612) 667-1015

Facsimile No. (612) 667-1068



Financing Party:

[                    ]




Dear Sir or Madam:




          From time to time, we, [Residential Funding Company, LLC] [GMAC Mortgage, LLC] (the
“Seller”), will send to you (or have sent to you) Mortgage Assets for which you have agreed to
commence and prosecute a foreclosure action. In connection with such foreclosure activities,
[copies of]1 1 one or more of the documents evidencing or otherwise relating to such
Mortgage Assets (“Documents”) will be delivered to you.




          [                    ] (the “Financing Party”), has financed the sale to us or
origination of such Mortgage Assets, and with such sale or origination we granted an ownership
and/or security interest in the Documents referred to below and the Mortgage Assets to which such
Documents relate to the Financing Party. Wells Fargo Bank, National Association (the
“Custodian”) is acting as custodian for the Financing Party in connection with the
Documents.




          Whenever we send you Documents to be covered by this letter agreement, we will send such
Documents to you under a transmittal letter identifying the specific documents delivered, and the
Mortgage Assets to which they relate, with a space at the end of the letter for you to sign and
to acknowledge your receipt of such Documents. Upon your receipt of any such Documents, you
hereby agree to fax to the Financing Party and the Custodian, no later than three (3) Business
Days after your receipt thereof, our transmittal letter, signed in the acknowledgment space by
you, pursuant to which you (i) acknowledge receipt of the Documents listed in the transmittal
letter, and (ii) acknowledge that with respect to such listed documents you are acting as bailee
of the Financing Party in accordance with the terms of this Attorney’s Bailee Letter.




          By signing this letter agreement below where indicated, (a) you agree that on and after the
date hereof until you are otherwise notified by the Financing Party or the Custodian, any
Documents






 




			
	1	 	For Acceptable Attorneys to whom copies of the Documents are sent.




F-1 









 









delivered to you as described above will be held by you as bailee in trust for the Financing
Party, (b) you certify that, as of the date of your receipt of any Documents, you have not
received notice of any interest of any other person or entity in such Documents or the related
Mortgage Assets, (c) you agree that you will commence and diligently prosecute foreclosure
proceedings with respect to the Mortgage Assets to which any such Documents relate and (d) you
certify that if either you or your law firm has any security interest in the Documents or the
Mortgage Assets to which those Documents relate you agree to waive any interest you or your firm
may acquire therein at any time, whether arising pursuant to law or otherwise or to refuse
delivery of such Documents and return them immediately to the Custodian.




          The Seller and the Financing Party hereby irrevocably instruct you that any Documents in
your possession are to be held by you as bailee in trust for the Financing Party, as provided
herein until they are returned to the Custodian at the address noted above together with a copy
of this letter agreement; provided that if the Financing Party or the Custodian notifies you that
the Financing Party’s interest in any of above-referenced Mortgage Assets have been released or
did not attach (the “Release Notice”), from the date of such Release Notice you will hold the
Documents relating to such Mortgage Assets (and no others) as bailee for the Seller, in which
case you will follow the Seller’s instructions regarding such Documents, and such Documents shall
be released to the Seller at the address noted above, or its designee, upon conclusion of the
foreclosure action, instead of returning them to the Custodian; and provided further that prior
to the date of any Release Notice, notwithstanding anything herein or elsewhere to the contrary,
if you receive instructions from the Financing Party or the Custodian which do not comport with
instructions you may have received from the Seller, including, without limitation, instructions
to deliver the Documents to the Custodian, the Financing Party or any other person or entity, you
shall abide by the instructions of the Custodian or Financing Party.




          You agree to immediately give telephonic notice (followed by written notice) to the
Custodian if you receive notice or any inquiry from any other person or entity of or with respect
to any interest in the Documents or the related Mortgage Assets and you agree that you shall
immediately notify each such person in writing, with a copy to the Custodian, of the prior
interest of the Financing Party therein.




          This letter agreement supersedes any letter agreement or other agreement or arrangement that
may exist between you and the Seller relating to the sale or origination of Mortgage Assets
financed by Financing Party. Notwithstanding any contrary understanding with you, the Seller or
any other person or entity, or any instructions to you from the Seller, the Seller or any other
person or entity, you shall abide by the terms of this letter. No deviation in performance of the
terms of any previous letter agreement between you and any of the undersigned shall alter any of
your duties or responsibilities as set forth herein.




          Because time is of the essence, please promptly sign and date the enclosed copy of this
letter agreement and return it via overnight delivery service to the Custodian at the above
address and via telecopier, send a copy of this executed letter agreement to the Seller. It is
important that the Custodian receive a copy of this letter agreement executed by you. Thank you
for your cooperation in assisting us with this project.



NOTE: BY ACCEPTING THE MORTGAGE ASSETS DELIVERED TO YOU WITH THIS LETTER, YOU CONSENT TO BE THE
CUSTODIAN, AGENT AND BAILEE FOR THE FINANCING PARTY ON THE TERMS DESCRIBED IN THIS LETTER. THE
CUSTODIAN REQUESTS THAT YOU ACKNOWLEDGE RECEIPT OF THE ENCLOSED PURCHASED ASSETS AND THIS LETTER
BY SIGNING AND RETURNING THE ENCLOSED COPY OF THIS LETTER TO THE CUSTODIAN; HOWEVER, YOUR FAILURE
TO DO SO DOES NOT NULLIFY SUCH CONSENT.




F-2 









 








	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[RESIDENTIAL FUNDING COMPANY, LLC, Seller	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[GMAC MORTGAGE, LLC, Seller	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	[                    ], Financing Party	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	ACKNOWLEDGED AND AGREED:	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	Print Name:	 	 	 	 
	Date:

	 	 	 	 

	 	 
	 	 	 	 	 





F-3 









 






Rider A




[Letterhead of                                         ]




                     ___, ___



Name of Attorney

[Address]




	 	 	 
	Re:

	 	Mortgagor:
	 

	 	Address of Property:

Loan Number:






Dear                     :




          We
refer to that certain letter (the “Attorney’s Bailee Letter”), dated                     ,
___, from us to you and signed by us and by [                    ] (“Financing Party”),
describing the terms under which you agreed to hold certain loan documents to be sent to you from
time to time under the Attorney’s Bailee Letter.




          The related collateral file evidencing or otherwise relating to the Mortgage Assets
(collectively, the “Documents”) is being sent to you under cover of this letter for the
purpose of commencement and prosecution of a foreclosure action.




          Please sign this letter in the space provided below to indicate your acknowledgment of
receipt of the Documents referenced above with respect to the Mortgage Asset(s) identified above,
and to confirm that you will hold such Documents as bailee for the Financing Party under and in
accordance with the terms of the Attorney’s Bailee Letter. As required by the Attorney’s Bailee
Letter, please fax to the Financing Party and the Custodian (with a copy to us), a copy of this
letter signed by you, not later than three (3) business days after your receipt of this letter.
We appreciate your cooperation.




	 	 	 	 	 
	 

	 	Sincerely yours,	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	By:	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






ACKNOWLEDGMENT:




     I acknowledge receipt of the Documents as listed above in this letter and of notice of the
ownership and/or security interests in such documents described in the Attorney’s Bailee Letter
referred to above. I confirm the certifications made by me in the Attorney’s Bailee Letter with
respect to such Documents and agree to act as bailee for the Financing Party with respect to such
documents on the terms set forth in the Attorney’s Bailee Letter and to comply in all other
respects with the terms of the Attorney’s Bailee Letter.



Print Name:




Date:





 











 





EXHIBIT G




FORM OF NOTICE TO THE CUSTODIAN





			
	To:	 	Wells Fargo Bank, National Association

1015 10th Ave SE

Minneapolis, Minnesota 55414

Attention: Mortgage Document Custody





From:
 Date:




     You are hereby notified that as of [date] the undersigned has transferred its right, title and
interest in and to the Mortgage Assets identified in the schedule attached hereto to [transferee’s
name and address] and the undersigned hereby releases all right, title and interest in and to such
Mortgage Assets. You are hereby instructed to hold such Mortgage Assets pursuant to the terms of
the Master Custodial Agreement, dated as of June 4, 2008, among Residential Mortgage Company, LLC,
GMAC Mortgage, LLC, the Financing Parties from time to time party thereto and Wells Fargo Bank,
National Association (the “Custodial Agreement”), for the sole and exclusive benefit of [name of
transferee] subject to the terms of the Custodial Agreement by which [name of transferee] hereby
agrees to be bound.



	 	 	 	 	 	 	 
	 	 	[                                        ], Financing Party	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 
	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 
	 	 

	 	 
	 

	 	Dated:	 	 	 	 
	 

	 	 
	 	 

	 	 






	 	 	 	 	 
	Agreed and Acknowledged:	 	 
	 
	 	 	 	 
	Wells Fargo Bank, National Association,	 	 
	as Custodian	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 
	Dated:
	 	 	 	 
	 

	 	 

	 	 






G-1









 






	 	 	 	 	 	 	 	 	 
	 
	,	 	 	 	 	 
	 

Assignee	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	 
	 	 	   	 	 
	Name:
	 	 	 	 	 	 	 	 
	 	 	   	 	 
	Title:
	 	 	 	 	 	 	 	 
	 	 	   	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 	 	   	 	 





G-2









 






EXHIBIT H




FORM OF TRANSMITTAL LETTER

[CUSTODIAN LETTERHEAD]




[Bailee]




                                                




                                                





     
Re:                                                             


Ladies and Gentlemen:




     Enclosed
please find the documents (the “Documents”) held by the Custodian (as defined below)
evidencing or otherwise relating to those mortgage assets listed separately on the attached
schedule (the “Mortgage Assets”), which Mortgage Assets are
owned by
[                    ] (the “Financing Party”) and which Documents are being delivered to the addressee (the “Bailee”) [for servicing][in
connection with a proposed [sale][financing]].



     Capitalized terms used herein and not otherwise defined shall have the meanings set forth in
that certain Master Custodial Agreement dated as of June 4, 2008, by and among Residential Funding
Company, LLC, GMAC Mortgage, LLC, the Financing Parties from time to time party thereto and Wells
Fargo Bank, National Association, as custodian (the “Custodian”).



     [If the Documents have been delivered to the Bailee for servicing, insert the following two
paragraphs]



     [The Financing Party’s ownership interest in the related Mortgage Assets will remain in full
force and effect and the Bailee shall hold possession of the Documents as custodian, agent and
bailee for and on behalf of the Financing Party. The Documents must be returned to the Custodian as
soon as the servicing purpose for which they were delivered has been accomplished, and in any
event, within ten (10) days from the date of delivery.



     THE CUSTODIAN REQUESTS THAT THE BAILEE ACKNOWLEDGE RECEIPT OF THE ENCLOSED MORTGAGE ASSETS AND
THIS LETTER BY SIGNING AND RETURNING THE ENCLOSED COPY OF THIS LETTER TO THE CUSTODIAN. HOWEVER,
THE BAILEE’S FAILURE TO DO SO DOES NOT NULLIFY SUCH CONSENT.]



     [If the Documents have been delivered to the Bailee in connection with a proposed sale or
financing, insert the following four paragraphs]



     [The Financing Party’s ownership interest in the related Mortgage Assets will remain in full
force and effect until the Financing Party’s receipt of the payoff amount that has been separately
agreed between the Financing Party and the Seller with respect to such Mortgage Asset (the “Payoff Amount”). Upon receipt of such Payoff Amount, the Financing Party transfers, conveys, sells, grants
and assigns any and all right, title and interest in or to only the Mortgage Assets for which the
related Payoff Amount was received (and no others) to Seller and Seller shall own the Mortgage
Assets, free and clear of any lien or encumbrance related to or arising out of the Financing
Party’s ownership of such Mortgage Assets.



H-1









 





     Until the Payoff Amount for a Mortgage Asset has been received by the Financing Party, the
Bailee shall hold possession of the related Documents as custodian, agent and bailee for and on
behalf of Financing Party. In the event that any Mortgage Asset is unacceptable for purchase,
return the rejected item directly to the Custodian at its address set forth below. If the Bailee is
unable to comply with the above instructions, please so advise the undersigned Custodian
immediately.



     By accepting the Documents delivered pursuant hereto, the Bailee certifies that, as of the
date of its receipt of any Documents, the Bailee (a) has not received notice of any interest of any
other person or entity in such Documents or the related Mortgage Assets, and (b) has no security
interest in the Documents or the Mortgage Asset to which those Documents relate.



H-2









 




NOTE: BY ACCEPTING THE DOCUMENTS DELIVERED TO THE BAILEE WITH THIS LETTER, THE BAILEE CONSENTS TO
BE THE CUSTODIAN, AGENT AND BAILEE FOR THE FINANCING PARTY AND, ONLY AFTER THE PAYOFF AMOUNT FOR
THE RELATED MORTGAGE ASSET HAS BEEN RECEIVED BY THE FINANCING PARTY, SELLER, ON THE TERMS DESCRIBED
IN THIS LETTER. THE CUSTODIAN REQUESTS THAT THE BAILEE ACKNOWLEDGE RECEIPT OF THE ENCLOSED MORTGAGE
ASSETS AND THIS LETTER BY SIGNING AND RETURNING THE ENCLOSED COPY OF THIS LETTER TO THE CUSTODIAN;
HOWEVER, THE BAILEE’S FAILURE TO DO SO DOES NOT NULLIFY SUCH CONSENT.]




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 	 	Wells Fargo Bank, National Association,	 	 
	 	 	as Custodian	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	Address:	 	 	 	 






	 	 	 	 	 
	RECEIPT ACKNOWLEDGED	 	 
	[Bailee]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 






H-3









 





EXHIBIT I




FORM OF LOST NOTE AFFIDAVIT




	 	 	 
	 

	 	(STATE OF NEW YORK
	SS::
	 	 
	 

	 	(COUNTY OF NEW YORK





I,                                         , as                            
                                 (title) of Wells Fargo Bank, National
Association (the “Custodian”), am authorized to make this Affidavit on behalf of the Custodian. In
connection with the administration of the loans held by the Custodian on behalf of [     ] as Financing
Party or the registered holder of such loans, as the case may be (the “Investor”),
                                                             (hereinafter called “Deponent”), being duly sworn, deposes and says
that:



1. Custodian’s address is:




                                                            



                                                            



                                                            




     That (s)he is a                      of Wells Fargo Bank, National Association (“Wells Fargo”), which was the
custodian of the loan documents for Mortgage Asset number                      under the Master Custodial
Agreement dated as of June 4, 2008 by and among Residential Funding Company, LLC, GMAC Mortgage,
LLC, the Financing Parties from time to time party thereto and Wells Fargo Bank, National
Association, as custodian.


2. That the original of the related note (the “Mortgage Note”) appears to have been lost, mislaid
or misfiled by Wells Fargo.



3. That the records of Wells Fargo do not show that such Mortgage Note was ever released, paid off,
satisfied, assigned, transferred, pledged or hypothecated and that such Mortgage Note has been
either lost, mislaid, or misfiled by Wells Fargo.



4. That Wells Fargo is aware that                                          to which the above mentioned loan is to be
assigned, relies upon the statements made herein as to such Mortgage Note having been lost, mislaid
or misfiled by Wells Fargo and never having been released, paid off, satisfied, assigned,
transferred, pledged or hypothecated.



5. That in the event that Wells Fargo should ever locate said Mortgage Note, Wells Fargo agrees to
provide said Mortgage Note to                                          upon return of this lost Mortgage Note to Wells Fargo.



6. That attached hereto is a true and correct copy of (i) the Mortgage Note, endorsed in blank by
the mortgagee, and (ii) the Mortgage or Deed of Trust [strike one] which secures the Mortgage Note,
which Mortgage or Deed of Trust is recorded at                                          .



7. That Wells Fargo shall indemnify, defend and hold harmless the Financing Party from and against
any and all loss, cost, liability, damages, or other expense (including, without limitation, the
payment of reasonable attorneys’ fees and costs) incurred by the Financing Party (a) if any of the




I-1









 







foregoing assurances by Wells Fargo is incorrect; or (b) as a result of any person or entity
claiming that such person or entity has an interest in the Mortgage Note or in any mortgage note
issued in respect of the related Mortgage Asset, or the right to enforce any of the terms or
provisions thereof. The foregoing indemnity shall extend, without limitation, to any claims that
may arise under any policy(ies) of title (re)insurance because of the incorrectness of Wells
Fargo’s assurances made in this affidavit. The indemnity granted under this paragraph shall survive
in perpetuity.




	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






I-2









 





CUSTODY OFFICER LIST




	 	 	 	 	 
	Name: Shari Gillund

	 	/s/ Shari Gillund
	 	 
	 

	 	 	 	 
	Title: Senior Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Patricia A. Hardenbrook

	 	/s/ Patricia A. Hardenbrook	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Mary Hogan

	 	/s/ Mary Hogan	 	 
	 

	 	 	 	 
	Title: Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Bradley D. Johnson

	 	/s/ Bradley D. Johnson	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Dora E. Kaufman

	 	/s/ Dora E. Kaufman	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Steve Naasz

	 	/s/ Steve Naasz	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Vonda J. Rankin

	 	/s/ Vonda J. Rankin	 	 
	 

	 	 	 	 
	Title: Trust Officer

	 	Signature	 	 
	 
	 	 	 	 
	Name: Susan S. Reiss

	 	/s/ Susan S. Reiss	 	 
	 

	 	 	 	 
	Title: Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Lori M. Swanell

	 	/s/ Lori M. Swanell	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Leigh Taylor

	 	/s/ Leigh Taylor	 	 
	 

	 	 	 	 
	Title: Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Sarah J. Woods

	 	/s/ Sarah J. Woods	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 
	 
	 	 	 	 
	Name: Frank A. Zazula

	 	/s/ Frank A. Zazula	 	 
	 

	 	 	 	 
	Title: Assistant Vice President

	 	Signature	 	 






 









 





EXHIBIT K-1




AUTHORIZED REPRESENTATIVES OF RESIDENTIAL FUNDING COMPANY, LLC




	 	 	 
	Name/Title:	 	Specimen Signature:
	 


	 	 
 
	 
	 	 
	Melissa White, Asst. Treasurer

	 	/s/ Melissa White
	 


	 	 
 
	Elizabeth Kelly, Asst. Treasurer

	 	/s/ Elizabeth Kelly
	 


	 	 
 
	William F. Cusey III, Asst. Treasurer

	 	/s/ William F. Cusey
	 


	 	 
 
	 
	 	 
	 


	 	 
 
	 
	 	 
	 


	 	 
 






K-1









 






EXHIBIT K-2




AUTHORIZED REPRESENTATIVES OF GMAC MORTGAGE, LLC




	 	 	 
	Name/Title:	 	Specimen Signature:
	 


	 	 
 
	 
	 	 
	Melissa White, Asst. Treasurer

	 	/s/ Melissa White
	 


	 	 
 
	Elizabeth Kelly, Asst. Treasurer

	 	/s/ Elizabeth Kelly
	 


	 	 
 
	William F. Cusey, III Treasurer

	 	/s/ William F. Cusey
	 


	 	 
 
	 
	 	 
	 


	 	 
 
	 
	 	 
	 


	 	 
 







K-2











 





SCHEDULE 7.01(t)




BILATERAL FACILITIES




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Internal	 		 	 	 	 
	 	 	 	 	Contract	 	Initial	 	 	 	 
	T#	 	Company Name	 	Number	 	Termination Date	 	Description	 	Legal Entity Name
	T212

	 	GMAC LLC
	 	RES-07521
	 	8/21/2008
	 	Credit Agreement between RFC
LLC and GMAC LLC dated
February 21, 2008
	 	Residential Capital, LLC, Residential Funding

Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	T303

	 	Residential Capital, LLC
	 	BUI-06824
	 	 	 	Treasury form letter
	 	Residential Capital, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T912

	 	WestLB, AG, New York

Branch
	 	WES-03410
	 	4/11/2008
	 	Seventh Amended and Restated
Receivables Funding Agreement
dated June 22, 2005
	 	RFC Construction Funding LLC, Residential

Funding Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T913

	 	WestLB, AG, New York

Branch
	 	WES-06779
	 	4/11/2008
	 	Payout Agreement from RFC
Construction to payout Alpine
dated February 12, 2004
	 	X- Residential Funding Corporation, RFC

Construction Funding LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T914

	 	Deutsche Bank AG
	 	DEU-06544
	 	6/30/2008
	 	Loan and Security Agreement
between Resort Funding, DB &
various lenders & agents dated
January 26, 2006
	 	X- Residential Funding Corporation, RFC

Resort Funding LLC, Residential Funding

Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T928

	 	Westpac Banking

Corporation
	 	WES-04893
	 	7/2/2008
	 	GMAC-RFC Westpac Warehouse
Trust Warehouse Subscription
Agmt; GMAC-RFC Mgmt, Perpetual
Trustee, GMAC-RFC Australia,
Westpac Banking; dated
September 6, 2006
	 	GMAC-RFC Australia Pty Ltd, GMAC-RFC

Management Pty Limited
	 
	 	 	 	 	 	 	 	 	 	 
	T410

	 	Unibanco—Uniao de
Bancos Brasileiros S.A.
	 	UNI-06200
	 	8/15/2009
	 	Uncommitted Facility Agreement
(English template) Unibanco
and GMAC-RFC Brazil, dated
July 17, 2006
	 	Residential Capital, LLC, GMAC-RFC Brazil Ltd.
	 
	 	 	 	 	 	 	 	 	 	 
	T916

	 	Canadian Imperial Bank
of Commerce
	 	CAN-06859
	 	8/30/2008
	 	Mortgage Purchase Agreement
between Canadian Imperial Bank
of Commerce & GMAC Residential
Funding of Canada dated March
16, 2006
	 	X- Residential Funding Corporation, GMAC
Residential Funding of Canada, Limited
	 
	 	 	 	 	 	 	 	 	 	 
	T620

	 	The Royal Bank of
Scotland PLC
	 	THE-06201
	 	5/31/2008
	 	Commitment Increase Notice to
the Class C Variable Funding
Note Loan Agreement from
PREEMAC to RBS, dated June 18,
2007
	 	GMAC RFC Investements B.V., Preemac II, NL
B.V.
	 
	 	 	 	 	 	 	 	 	 	 
	T712

	 	RM Cheshire Limited
	 	DEU-06214
	 	12/15/2008
	 	Master Repurchase Agreement
Extension: RM Cheshire Limited
and GMAC, dated November 27,
2006
	 	Residential Funding Company, LLC, GMAC RFC
Investements B.V.
	 
	 	 	 	 	 	 	 	 	 	 
	T720

	 	RBS	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	T308

	 	Scotia Inveriat Casa De
Bolsa, S.A. de C.V.
	 	MEX-06825
	 	 	 	Dual revolving certificates
(spanish); GMAC Hipotecaria
dated December 15, 2005
	 	GMAC Hipotecaria, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T309

	 	Mexico Mtn Line
	 	MEX-06826
	 	12/15/2009
	 	Dual Revolving Certificate
Program $5B (spanish); GMAC
Financiera dated December 15,
2005
	 	GMAC Financiera, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T407

	 	Scotiabank Inverlat S.A.
	 	MEX-06833
	 	 	 	Uncommitted Facility
Agreement; Scotiabank
Inverlat, GMAC Mexicana, dated
May 3, 2001
	 	X- Residential Capital Corporation, GMAC
Financiera, S.A., GMAC Hipotecaria, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T413

	 	Banco Inbursa
	 	BAN-06192
	 	5/12/2008
	 	Current Account Credit
Agreement (English) among
Banco Inbursa & GMAC
Financiera & GMAC Hipotecaria
dated March 12, 2007
	 	GMAC Residential Holding Company, LLC,
Homecomings Financial, LLC, GMAC Financiera,
S.A., GMAC Hipotecaria, S.A., Residential
Funding Company, LLC, GMAC Mortgage, LLC,
Residential Capital, LLC, GMAC — RFC Holding
Company, LLC





Schedule 7.01(t)-1




 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Internal	 		 	 	 	 
	 	 	 	 	Contract	 	Initial	 	 	 	 
	T#	 	Company Name	 	Number	 	Termination Date	 	Description	 	Legal Entity Name
	T414

	 	Banco Del Bajio
	 	BAN-06191
	 	2/14/2013
	 	Current Account Credit
Agreement among Banco Del
Bajio & GMAC Hipotecaria &
GMAC Financiera (English)
dated February 15, 2007
	 	GMAC Residential Holding Company, LLC,
Homecomings Financial, LLC, Residential
Funding Company, LLC, GMAC Mortgage, LLC,
Residential Capital, LLC, GMAC Financiera,
S.A., GMAC Hipotecaria, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T416

	 	Banco Mercantil Del
Norte, S. A.,y
	 	BAN-06189
	 	12/18/2009
	 	Bank Credit Line (English);
Banco Mercantil Del Norte &
GMAC Financiera dated December
19, 2006
	 	Residential Capital, LLC, GMAC Financiera,
S.A., GMAC Hipotecaria, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T711

	 	International Finance

Company
	 	INT-06675
	 	5/27/2010
	 	Trust Agreement Amendment
(Spanish) dated March 30, 2007
	 	Residential Funding Company, LLC, GMAC
Financiera, S.A.
	 
	 	 	 	 	 	 	 	 	 	 
	T610

	 	Deutsche Trustee

Company Limited
	 	DEU-06230
	 	11/7/2008
	 	Note Issuance Facility Deed -
Deed of Amendment & Amended
and Restated Agreement:
	 	GMAC-RFC Limited, CONDUIT (NO. 2) LIMITED
	 

	 	 	 	 	 	 	 	GMAC-RFC, Silo No2, Conduit
No2, Deutsche and others,
dated October 4, 2005	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	T618

	 	Deutsche Bank Ag London
	 	DEU-06193
	 	12/11/2008
	 	Note Issuance Facility Deed
among GRID (no5) Ltd, RM AYR
Ltd, DB & GMAC-RFC Prop Fin
Ltd dated Dec. 12, 2006
	 	GMAC-RFC Property Finance Limited
	 
	 	 	 	 	 	 	 	 	 	 
	T619

	 	JPMorgan Chase Bank,

National Association
	 	JPM-06196
	 	5/9/2008
	 	Note Issuance Facility Deed
among Canal No. 6, Chariot
Funding, Jupiter
Securitization, JPM, Deutsche
Trustee & GMAC-RFC Ltd dated
Feb. 9, 2007
	 	GMAC-RFC Limited, CANAL (NO. 6) Limited
	 
	 	 	 	 	 	 	 	 	 	 
	T919

	 	Morgan Stanley & Co.
International Limited
	 	RES-06862
	 	9/28/2029
	 	Deferred Consideration Sale

Agreement: Morgan Stanley &

GMAC-RFC LTD, dated September

28, 2005
	 	GMAC-RFC Limited
	 
	 	 	 	 	 	 	 	 	 	 
	T005

	 	Fannie Mae
	 	FNM-06863
	 	 	 	As Soon As Pooled Sale
Agreement (FNMA-Gestation
Repo)with Fannie Mae dated
July 28, 2003
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T006

	 	JPMorgan Chase Bank,

National Association
	 	JPM-06864
	 	 	 	Mortgage Loan Participation
Sale Agreement; JP Morgan
Chase, dated December 17, 2004
	 	GMAC Mortgage, LLC, GMAC Bank
	 
	 	 	 	 	 	 	 	 	 	 
	T803

	 	Donaldson, Lufkin &
Jenrette Securities
Corp.
	 	CRE-06557
	 	 	 	Master Repurchase Agreement
between Donaldsom, Lufkin &
Jenrette Securities &
Residential Funding Securities
dated May 25, 2000
	 	Residential Funding Securities, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T805

	 	Merrill Lynch
Government Securities
Inc.
	 	MER-06615
	 	 	 	Master Repurchase Agreement
between Merrill Lynch
Government Securities &
Residential Funding Securities
dated October 16, 2000
	 	Residential Funding Securities, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T813

	 	Daiwa Securities
America Inc.
	 	DAI-03573
	 	 	 	Master Repurchase Agreement
between Daiwa Securities &
Residential Funding Securities
dated August 9, 2006
	 	Residential Funding Securities, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T814

	 	FIMAT USA, LLC
	 	FIM-03574
	 	 	 	Master Repurchase Agreement
between Fimat & Residential
Funding Securities dated
October 23, 2006
	 	Residential Funding Securities, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T906

	 	Natixis Real Estate
Capital Inc.
	 	IXI-06809
	 	11/28/2008
	 	Amended and Restated Loan and
Security Agreement, IXIS dated
September 30, 2005
	 	X- GMAC Mortgage Corporation





 Schedule 7.01(t)-2




 









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Internal	 		 	 	 	 
	 	 	 	 	Contract	 	Initial	 	 	 	 
	T#	 	Company Name	 	Number	 	Termination Date	 	Description	 	Legal Entity Name
	T932

	 	Citibank, NA
	 	CIT-06399
	 	6/10/2008
	 	Loan and Security Agreement,
GMACM and Citibank dated
September 10, 2007
	 	GMAC Mortgage, LLC, Residential Capital, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T816

	 	BNP Paribas Securities
Corp.
	 	BNP-06176
	 	 	 	Master Repurchase Agreement

with BNP Paribas dated August

15, 2007
	 	Residential Funding Securities, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T819

	 	Credit Suisse

Securities (Europe)

Limited
	 	CRE-04745
	 	 	 	Master Repurchase Agreement
between Credit Suisse
Securities (Europe) Ltd & RFC,
LLC dated January 11, 2007
	 	Residential Funding Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T922

	 	Credit Suisse
Securities (USA) LLC
	 	CSF-06561
	 	 	 	Master Repurchase Agreement
between Credit Suisse
Securities & RFC dated May 16,
2006
	 	Residential Funding Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T929

	 	Lehman Brothers Inc.
	 	LEH-06634
	 	 	 	Master Repurchase Agreement
between Lehman & RFC dated
March 14, 2006
	 	X- Residential Funding Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T008

	 	Fannie Mae
	 	FAN-06641
	 	 	 	Master Repurchase Agreement #
MP03986.1 — Amendment #43
dated October 23, 2007
	 	GMAC Mortgage, LLC, Residential Capital, LLC,

GMAC LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T009

	 	Fannie Mae
	 	FAN-06642
	 	 	 	Master Repurchase Agreement
Amendment 26 between Fannie
Mae and GMAC Mortgage, dated
October 23, 2007
	 	GMAC Mortgage, LLC, Residential Capital, LLC,

GMAC LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T905

	 	Bear, Stearns & Co Inc
	 	GMA-06810
	 	2/25/2031
	 	Indenture between GMACM Home
Equity Notes 2004 Variable
Funding Trust & WF Bank dated
February 24, 2004
	 	X- GMAC Mortgage Corporation, GMACR Mortgage
Products, Inc., GMACM Home Equity Notes 2004
Variable Funding Trust
	 
	 	 	 	 	 	 	 	 	 	 
	T909

	 	Barclays Bank PLC
	 	BAR-07730
	 	12/26/2008
	 	Second Amended and Restated
Indenture between GMAC
Servicer, BoNY, GMACM and RFC,
LLC dated March 6, 2008
	 	Residential Funding Company, LLC, GMAC
Mortgage Group, LLC, GMACR Mortgage Products,
Inc.
	 
	 	 	 	 	 	 	 	 	 	 
	T411

	 	JPMorgan Chase Bank,

National Association
	 	JPM-05093
	 	7/31/2008
	 	Offer of Discretionary Line of
Credit from JPM to GMACM dated
March 6, 2007
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T412

	 	US Bank National

Association
	 	USB-05237
	 	 	 	Letter for $1M Credit
Facility; US Bank, dated
October 26, 2006
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T214

	 	GMAC LLC
	 	GMA-08354
	 	10/17/2008
	 	Loan and Security Agreement
between GMAC, RFC and GMACM
dated April 18, 2008
	 	Residential Funding Company, LLC, GMAC

Mortgage, LLC, Residential Capital, LLC, GMAC

LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T906

	 	Natixis Real Estate
Capital Inc.
	 	IXI-06809
	 	11/28/2008
	 	Amended and Restated Loan and
Security Agreement, IXIS dated
September 30, 2005
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T932

	 	Citibank, NA
	 	CIT-06399
	 	6/10/2008
	 	Loan and Security Agreement,
GMACM and Citibank dated
September 10, 2007
	 	GMAC Mortgage, LLC, Residential Capital, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T934
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	T215

	 	GMAC LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	T903

	 	Credit Suisse First

Boston Mortgage Capital

LLC
	 	CRE-06778
	 	5/28/2008
	 	Master Repurchase Agreement:
Credit Suisse First Boston
(CSFB) dated December 20, 2004
	 	X- Homecomings Financial Network, Inc., X-
Residential Funding Corporation, X- GMAC
Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T921

	 	The Royal Bank of
Scotland PLC
	 	GRE-03367
	 	6/19/2008
	 	Master Repurchase Agreement
between Greenwich Capital
Financial & RFC dated
September 20, 2006
	 	Residential Funding Company, LLC, X-
Homecomings Financial Network, Inc.,
Residential Capital, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T924

	 	Lehman Commercial Paper

Inc
	 	LEH-04528
	 	5/30/2008
	 	Master Repurchase Agmt: Lehman
Commercial Paper & RFC, dated
November 30, 2006
	 	Residential Funding Company, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T930

	 	Bear Stearns Mortgage

Capital Corporation
	 	BEA-05001
	 	6/19/2008
	 	Master Repurchase Agreement
with Bear Stearns Mort Cap Co.
dated March 12, 2007
	 	Residential Capital, LLC, Residential Funding

Company, LLC






Schedule 7.01(t)-3





 









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Internal	 		 	 	 	 
	 	 	 	 	Contract	 	Initial	 	 	 	 
	T#	 	Company Name	 	Number	 	Termination Date	 	Description	 	Legal Entity Name
	T002

	 	Bear Stearns

International Limited
	 	BAN-07104
	 	10/31/2007
	 	Servicing Agreement among
GMACM, Walnut Grove, and Bank
One as Trustee dated January
31, 2003
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T003

	 	Bank of America, NA
	 	HOR-06813
	 	11/30/2007
	 	Mortgage Loan Purchase and
Sale Agreement Amendment #1;
BofA, Bank One, Horsham, GMACM
dated June 20, 2002
	 	X- GMAC Mortgage Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	T716

	 	Bank of America, NA
	 	BAN-06178
	 	08/15/08
	 	Master Repurchase Agreement
with BoA dated August 17, 2007
	 	GMAC Bank, GMAC Mortgage, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T717

	 	JPMorgan Chase Bank,

National Association
	 	JPM-06733
	 	8/11/2008
	 	MRA between JPMorgan & GMACM
dated December 7, 2007
	 	GMAC Bank, GMAC Mortgage, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	T719

	 	Bank of America, NA and
various other financial
institutions
	 	 	 	 	 	MRA dated on or about 6/24/2008	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Greenwich Capital

Financial Products, Inc
	 	 	 	 	 	 	 	Residential Capital, LLC
	 
	 	 	 	 	 	 	 	 	 	 





Excludes ResCap intercompany agreements, bank lines and loans.




Schedule 7.01(t)-4





 









 








SCHEDULE 8.01(m)




POST-CLOSING REQUIREMENTS



(All of the documents described below are required to be executed and delivered within the time
specified below and are required to be in form and substance satisfactory to the Lender Agent.)



A. Within 30 days of the Closing Date, the Brazilian Security Documents.



B. Within 40 days of the Closing Date, the Chilean Security Documents.



C. Within 120 days of the Closing Date, the Mexican Security Documents.



D. Within 25 days of the Closing Date, the Canadian Custodial Agreement.



E. Within 25 days of the Closing Date, a share charge executed by RFC and the First Priority
Collateral Agent with respect to GMAC RFC Ireland Limited in substantially identical form to the
English Share Charge.



F. Within 25 days of the Closing Date, a share charge executed by RFC and the First Priority
Collateral Agent with respect to GHS Global Relocation UK Limited United Kingdom in substantially
identical form to the English Share Charge.



G. Within 10 days of the Closing Date, the inclusion of the assets or equity of the
Subsidiaries of ResCap (other than those referenced in clause F. above) involved in
relocation businesses, other than Excluded Assets.



H. Within the time frame specified in clause A, B, C, D, E, F and G above (as applicable) the
registration or filing of any documents, statements, contracts or records and the obtaining of any
governmental approvals and the taking of all action under applicable law (including Chilean,
Brazilian, Mexican and Canadian law) as is necessary or reasonably requested by the Lender Agent to
obtain the equivalent, under applicable law, of a first priority perfected security interest in the
collateral granted by the documents described above.



I. Within 25 days of the Closing Date, all documentation necessary to transfer all REO
Subsidiaries whose equity constitutes Primary Collateral shall have been executed, delivered and
submitted for recording in the applicable real estate recording office, together with all necessary
filing fees, taxes and similar charges.



J. Within 20 days of the Closing Date, cause the data center in Eden Prairie, Minnesota owned
by ResCap and/or its Subsidiaries to be transferred to a special purpose company, the equity of
which has been pledged as Collateral pursuant to the Security Agreement.



K. Within 14 days of the Closing Date, cause the REO Owners to amend their governing limited
liability company agreements to include customary provisions with respect to independent directors
and special members for a bankruptcy remote special purpose vehicle.


Schedule 8.01(m)-1




 









 








L. Within 10 days of the Closing Date, reissued stock certificates or other similar
documentation evidencing the ownership and pledge under the Security Agreement of any equity
interests pledged as Collateral under the Security Agreement with respect to Ladue Associates,
Inc., Residential Funding Mortgage Securities I, Inc., Residential Asset Mortgage Products, Inc. or
any other entity as to which the applicable stock certificate was not in the possession of the
grantor on the Closing Date.



M. Within 14 days of the Closing date detailed disclosure of any licenses with respect to
trademark assets subject to the Trademark Security Agreement.




Schedule 8.01(m)-2





 









 








SCHEDULE 13.02




NOTICES




The Borrowers:




Residential Funding Company, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

Attn: John Peterson

Phone: (952) 857-7359

Fax: (952) 921-4230

Email: john.peterson@gmacrescap.com




With copy to:




GMAC Mortgage, LLC

c/o Residential Funding Company, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

Attn: John Peterson

Phone: (952) 857-7359

Fax: (952) 921-4230

Email: john.peterson@gmacrescap.com




With copy to:




Residential Capital, LLC

7501 Wisconsin Avenue

Suite 900

Bethesda, MD 20814

Attn: Hu Benton, Managing Director, VP and Associate Counsel

Phone: (301) 215-6320

Fax: (301) 664-6999

Email: Hu.Benton@gmacrescap.com




The Lender:




GMAC LLC

200 Renaissance Center

Detroit, MI 48265

Attn: David Walker, Group VP and Treasurer

Phone: (313) 656-5400

Fax: (313) 656-5401

Email: david.walker@gmacfs.com




Schedule 13.02-1




 









 





With copy to:




William B. Solomon, VP and General Counsel

Phone: (313) 656-6128

Fax: (313) 656-6124

Email: William.b.solomon@gm.com




Guarantors:




Residential Capital, LLC

7501 Wisconsin Avenue

Suite 900

Bethesda, MD 20814

Attn: Hu Benton, Managing Director, VP and Associate Counsel

Phone: (301) 215-6320

Fax: (301) 664-6999

Email: Hu.Benton@gmacrescap.com




Homecomings Financial, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

Attn: John Peterson

Phone: (952) 857-7359

Fax: (952) 921-4230

Email: john.peterson@gmacrescap.com




GMAC-RFC Holding Company, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

Attn: John Peterson

Phone: (952) 857-7359

Fax: (952) 921-4230

Email: john.peterson@gmacrescap.com




GMAC Residential Holding Company, LLC

3993 Howard Hughes Parkway

Suite 250

Las Vegas, NV 89169

Attn: William Casey

Phone: (215) 682-6301

Fax: (215) 682-1249

Email: william.casey@gmacrescap.com




Schedule 13.02-2





 









 








EXHIBIT A




ELIGIBILITY REQUIREMENTS




     Capitalized terms used in this Exhibit A have the meaning set forth in Schedule
1.01 to the Loan Agreement to which the Exhibit A is a part.



     An Asset shall be deemed to satisfy the Eligibility Requirements if such Asset meets the
following requirements, subject to the qualification that certain of such requirements (as
specified below) will not apply to Substitute Collateral; provided that the negative effect
of any such exclusion shall be taken into account in determining the Fair Value of such Substitute
Collateral:



          (a) each related Contract constitutes a legal, valid and binding obligation of the
related Payor, enforceable against the Payor in accordance with its terms and is not subject
to any right of rescission, set-off, counterclaim or other defense of the related Payor
(except as enforceability may be limited or defenses may arise by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors’,
mortgagees’ or lessors’ rights in general and general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law);




          (b) each related Contract was originated and has been administered in accordance with
Applicable Law (including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity, warehousing and
disclosure laws);




          (c) each related Contract was originated by an Obligor or acquired by an Obligor in the
ordinary course of business;




          (d) each related Contract has been underwritten and serviced by an Obligor in
accordance with the Credit and Collection Policies pursuant to (i) documentation acceptable
to prudent lending institutions or investors, subject to Approved Exceptions in the case of
Mortgage Loans, and (ii) origination practices that are customary for the origination of
assets of such type as of the time such Asset was originated; provided
however that this requirements will not apply to Substitute Collateral;




          (e) such Asset has been selected for inclusion in the Primary Collateral using no
selection procedures adverse to the Secured Parties;




          (f) such Asset is not a Defaulted Asset or a Credit Risk Asset; provided
however that this requirement shall not apply in the case of Substitute Collateral;




          (g) the First Priority Collateral Agent acquired and has good title and a valid and
perfected security interest in such Asset, free of any Lien (other than Permitted Liens);




          (h) the obligations of the Payor under the related Contract are irrevocable,
unconditional and non-cancelable;



Ex. A-1



 









 








          (i) the related Contract is denominated and payable only in Dollars by a Payor in the
United States of America;




          (j) the related Contract would be characterized as “chattel paper”, an “account”, an
“instrument”, a “general intangible” or “investment property” under the UCC; and




          (k) the pledge of the Asset or any interest therein by the relevant Obligor to the
First Priority Collateral Agent does not require the consent of any Person that has not been
obtained and does not otherwise violate the terms of any other agreement binding on the
Obligors;




          (l) such Asset is not subject to an offer of exchange or tender by its issuer or by any
other Person for securities or any other type of consideration other than cash, and such
Asset does not provide at any time over its life of the payment of any amounts due to be
made by delivery of an equity security or mandatory conversion into an equity security;




          (m) either (i) no payments of principal or interest on such security are subject to
withholding taxes imposed by any jurisdiction or (ii) if any such payments are subject to
withholding tax imposed by any jurisdiction, the obligor thereunder is required to make
“gross-up” payments that cover the full amount of any such withholding tax on an after-tax
basis;




          (n) such Asset is not subject to substantial non-credit related risk as determined by
the Obligors or the Lender Agent, and the Lender Agent has not otherwise notified the
Borrowers that such Asset shall not be an Eligible Asset; provided however
that this requirement shall not apply to Substitute Collateral;




          (o) either (i) future advances are not required to be made by the holder of such Asset,
or (ii) if future advances are required to be made, the Obligors have adequate means with
which to make future advances;




          (p) the related Payor is organized or incorporated under the laws of a country that
does not impose foreign exchange restrictions effectively limiting the availability or use
of U.S. Dollars to make scheduled payments of principal or interest on such Asset;




          (q) such Asset requires the payment of a fixed amount of principal in cash no later
than its stated maturity or termination date, and such Asset is not callable for less than
its face amount;




          (r) such Asset is not an operating lease or financing by a debtor-in-possession in an
insolvency proceeding;




          (s) the terms of such Asset have not been impaired, waived, altered or modified in any
respect, except (i) in accordance with the Credit and Collection Policy with a view to
maximizing the value of such Asset or (ii) as required by Applicable Law;




          (t) if such Asset is a Mortgage Loan, the related mortgage has not been satisfied,
canceled, subordinated or rescinded and the related mortgage property has not been released
from the lien of the mortgage;




Ex. A-2




 









 








          (u) in the case of an Asset that is a Servicing P&I Advance, Servicing Corporate
Advance or Servicing T&I Advance, the related Obligor reasonably believes that such advance
is recoverable from the proceeds of the sale of the related real estate;




          (v) in the case of an Asset that is a Servicing P&I Advance, Servicing Corporate
Advance or Servicing T&I Advance, such Asset arises under an Eligible Servicing Advances
Agreement; provided however that this requirement shall not apply in the
case of Substitute Collateral;




          (w) in the case of an Asset that is an Incremental Advance, the related Obligor
reasonably believes that it is contractually obligated to make such advance or that such
advance is necessary to maximize its recovery on the related collateral;




          (x) in the case of an Asset that is an Equity Interest in a Subsidiary or joint venture
that holds parcels of real estate, such Equity Interest shall be considered to be an
Eligible Asset to the extent of the Value of parcels for which (i) an enforceable deed
evidencing such Subsidiary’s or joint venture’s ownership interest in such parcel has been
submitted for recording in the appropriate filing office, and (ii) such parcel is not
subject to any Liens other than Permitted Liens;




          (y) if such Asset represents the right to be paid by the VA or the FHA in respect of
servicing costs on an insured Mortgage Loan, such Mortgage Loan shall have been included in
Primary Collateral; and




          (z) such Asset is not an Excluded Asset.




Ex. A-3





 









 








EXHIBIT B




[RESERVED]




Ex. B-1





 









 








EXHIBIT C




INITIAL PERMITTED FUNDING INDEBTEDNESS





	1.	 	Description of Notes






	 	(a)	 	Floating Rate Notes due June 9, 2008; Floating Rate Notes due November 21,
2008; 8.125% Notes due November 21, 2008; Floating Rate Notes due April 17, 2009;
Floating Rate Subordinated Notes due April 17, 2009; Floating Rate Notes due May 22,
2009; 8.375% Notes due June 30, 2010; Floating Rate Notes due September 27, 2010;
8.000% Notes due February 22, 2011; 7.125% Notes due May 17, 2012; 8.500% Notes due
June 1, 2012; 8.500% Notes due April 17, 2013; 8.375% Notes due May 17, 2013; 9.875%
Notes due July 1, 2014; and 8.875% Notes due June 30, 2015.






	2.	 	Term Loan Agreement






	 	(a)	 	Term Loan Facility dated as of July 28, 2005 among ResCap, the lenders
thereunder, Citibank, N.A., as syndication agent, the documentation agents thereunder,
and JPMorgan Chase Bank, N.A., as administrative agent, from the lenders thereunder.






	3.	 	Other






	 	(a)	 	Any indebtedness referenced in Residential Capital, LLC’s Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 3, 2008.





Ex. C-1





 









 








EXHIBIT 2.02(a)(i)




FORM OF REVOLVING NOTE




June 4, 2008




$3,500,000,000




     FOR VALUE RECEIVED, Residential Funding Company, LLC, a Delaware limited liability company
(“RFC”), and GMAC Mortgage, LLC, a Delaware limited liability company (“GMAC
Mortgage” and together with RFC, each a “Borrower” and collectively, the
“Borrowers”), jointly and severally promise to pay to the order of GMAC LLC (the
“Lender”) on or before the Revolving Loan Repayment Date the principal amount of THREE
BILLION FIVE HUNDRED MILLION DOLLARS ($3,500,000,000), or such lesser amount as shall reflect the
Outstanding Aggregate Loan Amount of the Revolving Loans (each as defined in the Loan Agreement
referred to below) made by the Lender to the Borrower.



     The Borrowers further promise to pay interest on the unpaid principal amount of this Revolving
Note from time to time outstanding, payable as provided in the Loan Agreement (referred to below),
at the rates per annum provided in the Loan Agreement; provided, however, that such
interest rate shall not at any time exceed the maximum rate permitted by law. All payments of
principal of and interest on this Revolving Note shall be payable in lawful currency of the United
States of America at the office of the Lender as provided above or such other address as the holder
hereof shall have designated to the Borrowers, in immediately available funds.



     The date, amount and interest rate of each Revolving Loan made by the Lender to the Borrowers,
and each payment made on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Revolving Note, endorsed by the Lender on the schedule
attached hereto or any continuation thereof; provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the Borrowers to make
a payment when due of any amount owing under the Loan Agreement or hereunder in respect of the
Revolving Loans made by the Lender.



     This Revolving Note is one of the Revolving Notes referred to in Loan Agreement dated June 4,
2008 between the Borrowers, GMAC LLC, as Lender Agent, the Lender and certain other lenders and
guarantors party thereto (the “Loan Agreement”). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement.
Upon occurrence of any Event of Default, the principal hereof, and all accrued interest thereon,
may be declared or shall automatically become, due and payable pursuant to the Loan Agreement.



     The Borrowers agree to pay all the Lender’s costs of collection and enforcement (including
reasonable attorneys’ fees and disbursements of lender’s counsel) in respect of this Revolving Note
when incurred, including, without limitation, reasonable attorneys’ fees through appellate
proceedings.



Ex. 2.02(a)(i)-1





 









 








     Notwithstanding the pledge of the Collateral, the Borrowers hereby acknowledge, admit and
agree that the Borrowers’ obligations under this Revolving Note are recourse obligations of the
Borrowers to which the Borrowers pledge their full faith and credit.



     The Borrowers, and any indorsers or guarantors hereof, (a) severally waive diligence,
presentment, protest and demand and also notice of protest, demand, dishonor and nonpayment of this
Revolving Note, (b) expressly agree that this Revolving Note, or any payment hereunder, may be
extended from time to time, and consent to the acceptance of further Collateral, the release of any
Collateral for this Revolving Note, the release of any party primarily or secondarily liable
hereon, and (c) expressly agree that it will not be necessary for the Lender, in order to enforce
payment of this Revolving Note, to first institute or exhaust the Lender’s remedies against the
Borrowers or any other party liable hereon or against any Collateral for this Revolving Note. No
extension of time for the payment of this Revolving Note, or any installment hereof, made by
agreement by the Lender with any person now or hereafter liable for the payment of this Revolving
Note, shall affect the liability under this Revolving Note of the Borrowers, even if the Borrowers
are not a party to such agreement; provided, however, that the Lender and the
Borrowers, by written agreement between them, may affect the liability of the Borrowers.



     This Revolving Note may be assigned in whole or in part only by registration of such
assignment or sale on the Register. Any participation in respect of this Revolving Note may be
effected only by the registration of such participation on the Participant Register.



     Any reference herein to the Lender shall be deemed to include and apply to every subsequent
holder of this Revolving Note. Reference is made to the Loan Agreement and Security Agreement for
provisions concerning optional and mandatory prepayments, Collateral, acceleration and other
material terms affecting this Revolving Note.



     Any enforcement action relating to this Revolving Note may be brought by motion for summary
judgment in lieu of a complaint pursuant to Section 3213 of the New York Civil Practice Law and
with respect to this Revolving Note and waives any right with respect to the doctrine of forum non
conveniens with respect to such transactions.



     This Revolving Note shall be governed by and construed in accordance with the laws of the
state of New York without regard to conflicts of laws principles (but with reference to section
5-1401 of the New York General Obligation law) whose laws the Borrowers expressly elect to apply to
this Revolving Note. Each party hereto hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York for purposes of all legal
proceedings arising out of or relating to this Revolving Note. The Borrowers irrevocably waive, to
the fullest extent permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. The Borrowers hereby consent to
process being served in any suit, action or proceeding with respect to this agreement, or any
document delivered pursuant hereto by the mailing of a copy thereof by registered or certified
mail, postage prepaid, return receipt requested, to its respective address specified at the time
for notices under the Loan Agreement or to any



Ex. 2.02(a)(i)-2




 









 







other address of which it shall have given written or electronic notice to the Lender. The
foregoing shall not limit the ability of Lender to bring suit in the courts of any jurisdiction.




     The Borrowers hereby irrevocably waive any and all right to a trial by jury with respect to
any legal proceeding arising out of or relating to this Revolving Note.



     IN WITNESS WHEREOF, the undersigned has caused this Revolving Note to be executed by its duly
authorized officer as of the day and year first above written.



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. 2.02(a)(i)-3





 









 








EXHIBIT 2.02(a)(ii)




FORM OF TERM NOTE




June 4, 2008




$1,293,500,000





     FOR VALUE RECEIVED, Residential Funding Company, LLC, a Delaware limited liability company
(“RFC”), and GMAC Mortgage, LLC, a Delaware limited liability company (“GMAC
Mortgage” and together with RFC, each a “Borrower” and collectively, the
“Borrowers”), jointly and severally promise to pay to the order of GMAC LLC (the
“Lender”) on or before the Term Loan Repayment Date the principal amount of ONE BILLION TWO
HUNDRED NINETY-THREE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,293,500,000), or such lesser amount
as shall reflect the Outstanding Aggregate Term Loan Amount of the Term Loans (each as defined in
the Loan Agreement referred to below) made by the Lender to the Borrower.



     The Borrowers further promise to pay interest on the unpaid principal amount of this Term Note
from time to time outstanding, payable as provided in the Loan Agreement (referred to below), at
the rates per annum provided in the Loan Agreement; provided, however, that such
interest rate shall not at any time exceed the maximum rate permitted by law. All payments of
principal of and interest on this Term Note shall be payable in lawful currency of the United
States of America at the office of the Lender as provided above or such other address as the holder
hereof shall have designated to the Borrowers, in immediately available funds.



     The date, amount and interest rate of each Term Loan made by the Lender to the Borrowers, and
each payment made on account of the principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Term Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrowers to make a payment
when due of any amount owing under the Loan Agreement or hereunder in respect of the Term Loans
made by the Lender.



     This Term Note is one of the Term Notes referred to in Loan Agreement dated June 4, 2008
between the Borrowers, GMAC LLC, as Lender Agent, the Lender and certain other lenders and
guarantors party thereto (the “Loan Agreement”). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement.
Upon occurrence of any Event of Default, the principal hereof, and all accrued interest thereon,
may be declared or shall automatically become, due and payable pursuant to the Loan Agreement.



     The Borrowers agree to pay all the Lender’s costs of collection and enforcement (including
reasonable attorneys’ fees and disbursements of lender’s counsel) in respect of this Term Note when
incurred, including, without limitation, reasonable attorneys’ fees through appellate proceedings.



Ex. 2.02(a)(ii)-1




 









 








     Notwithstanding the pledge of the Collateral, the Borrowers hereby acknowledge, admit and
agree that the Borrowers’ obligations under this Term Note are recourse obligations of the
Borrowers to which the Borrowers pledge their full faith and credit.



     This Term Note evidences indebtedness initially incurred under the Term Loan Agreement, and
nothing contained herein shall be deemed to constitute a cancellation or repayment of such
indebtedness. Such Indebtedness remains outstanding under the Loan Agreement and is subject to the
terms of the Loan Agreement.



     The Borrowers, and any indorsers or guarantors hereof, (a) severally waive diligence,
presentment, protest and demand and also notice of protest, demand, dishonor and nonpayment of this
Term Note, (b) expressly agree that this Term Note, or any payment hereunder, may be extended from
time to time, and consent to the acceptance of further Collateral, the release of any Collateral
for this Term Note, the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for the Lender, in order to enforce payment of this
Term Note, to first institute or exhaust the Lender’s remedies against the Borrowers or any other
party liable hereon or against any Collateral for this Term Note. No extension of time for the
payment of this Term Note, or any installment hereof, made by agreement by the Lender with any
person now or hereafter liable for the payment of this Term Note, shall affect the liability under
this Term Note of the Borrowers, even if the Borrowers are not a party to such agreement;
provided, however, that the Lender and the Borrowers, by written agreement between
them, may affect the liability of the Borrowers.



     This Term Note may be assigned in whole or in part only by registration of such assignment or
sale on the Register. Any participation in respect of this Term Note may be effected only by the
registration of such participation on the Participant Register.



     Any reference herein to the Lender shall be deemed to include and apply to every subsequent
holder of this Term Note. Reference is made to the Loan Agreement and Security Agreement for
provisions concerning optional and mandatory prepayments, Collateral, acceleration and other
material terms affecting this Term Note.



     Any enforcement action relating to this Term Note may be brought by motion for summary
judgment in lieu of a complaint pursuant to Section 3213 of the New York Civil Practice Law and
with respect to this Term Note and waives any right with respect to the doctrine of forum non
conveniens with respect to such transactions.



     This Term Note shall be governed by and construed in accordance with the laws of the state of
New York without regard to conflicts of laws principles (but with reference to section 5-1401 of
the New York General Obligation law) whose laws the Borrowers expressly elect to apply to this Term
Note. Each party hereto hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York for purposes of all legal proceedings arising
out of or relating to this Term Note. The Borrowers irrevocably waive, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum. The Borrowers hereby consent to process



Ex. 2.02(a)(ii)-2




 









 







being served in any suit, action or proceeding with respect to this agreement, or any document
delivered pursuant hereto by the mailing of a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to its respective address specified at the time for notices
under the Loan Agreement or to any other address of which it shall have given written or electronic
notice to the Lender. The foregoing shall not limit the ability of Lender to bring suit in the
courts of any jurisdiction.




     The Borrowers hereby irrevocably waive any and all right to a trial by jury with respect to
any legal proceeding arising out of or relating to this Term Note.



     IN WITNESS WHEREOF, the undersigned has caused this Term Note to be executed by its duly
authorized officer as of the day and year first above written.



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. 2.02(a)(ii)-3





 









 








EXHIBIT 2.03(a)




FORM OF BORROWER FUNDING REQUEST




GMAC LLC

     as Lender Agent

200 Renaissance Center

Detroit, MI 48265

          Attention: David Walker, Group VP and Treasurer




Ladies and Gentlemen:



This [Initial] Borrower Funding Request is delivered to you pursuant to [Section
2.03(a)]/ [Section 2.03(b)] of the Loan Agreement, dated as of June 4, 2008 (as the
same may be amended, supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”), by and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC
(“GMAC Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the
“Initial Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party
thereto as Guarantors (each, a “Guarantor”), the Principal institutions and other Persons
that are or may from time to time become parties thereto as Lenders (together with the Initial
Lender and their respective successor and assigns, each a “Lender” and collectively, the
Lenders”) and GMAC LLC, as agent for the Lenders (in such capacity together with its
successors and assigns in such capacity, the “Lender Agent”). Unless otherwise defined
herein or as the context otherwise requires, terms used herein have the meaning assigned thereto
under Schedule 1.01 of the Loan Agreement.



The undersigned hereby requests that a Revolving Loan be made in the aggregate principal
amount of $[•] on [•], 200[•] to be secured by the Collateral.



[An Interim Borrowing Base Report, revised to reflect transactions since the most recently
delivered Collateral Value Report, has been delivered pursuant to Section 2.03 of the Loan
Agreement.]



The undersigned hereby acknowledges that the delivery of this [Initial] Borrower Funding
Request and the acceptance by the undersigned of the proceeds of the Revolving Loan requested
hereby constitute a representation and warranty by the undersigned that all conditions precedent to
such Revolving Loan specified in Article V of the Loan Agreement have been satisfied and
will continue to be satisfied after giving effect to such Loan.



Please wire transfer the proceeds of the Revolving Loan to the following account pursuant to
the following instructions:




Ex. 2.03(a)-1




 









 







Residential Funding Company, LLC Wire Instructions:




	 	 	 	 	 
	 
	 	Beneficiary:	 	Residential Capital Cash Concentration
	 
	 	Beneficiary Bank:	 	Bank of America
	 
	 	Beneficiary Bank Address:	 	San Francisco, CA
	 
	 	ABA:	 	026-009-593
	 
	 	Account #:	 	1235469131





GMAC Mortgage, LLC Wire Instructions:




	 	 	 	 	 
	     
	 	Beneficiary:	 	Residential Capital Cash Concentration
	 
	 	Beneficiary Bank:	 	Bank of America
	 
	 	Beneficiary Bank Address:	 	San Francisco, CA
	 
	 	ABA:	 	026-009-593
	 
	 	Account #:	 	1235469131






     The undersigned has caused this [Initial] Borrower Funding Request to be executed and
delivered, and the certification and warranties contained herein to be made, by its duly authorized
officer this [•] day of [•], 200[•].



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Acknowledged and agreed:




GMAC LLC




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Ex. 2.03(a)-2





 









 








EXHIBIT 2.03(b)




FORM OF INTERIM BORROWING BASE REPORT




GMAC LLC

     as Lender Agent

200 Renaissance Center

Detroit, MI 48265

          Attention: David Walker, Group VP and Treasurer




Ladies and Gentlemen:



This Interim Borrowing Base Report is delivered to you pursuant to Section 2.03(b) of
the Loan Agreement, dated as of June 4, 2008 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the “Loan Agreement”), by and among Residential
Funding Company, LLC (“RFC”), GMAC Mortgage, LLC (“GMAC Mortgage” and together with
RFC, the “Borrowers”), GMAC LLC (the “Initial Lender”), Residential Capital, LLC
and the other Affiliates of the Borrowers party thereto as Guarantors (each, a
“Guarantor”), the Principal institutions and other Persons that are or may from time to
time become parties thereto as Lenders (together with the Initial Lender and their respective
successor and assigns, each a “Lender” and collectively, the Lenders”) and GMAC
LLC, as agent for the Lenders (in such capacity together with its successors and assigns in such
capacity, the “Lender Agent”). Unless otherwise defined herein or as the context otherwise
requires, terms used herein have the meaning assigned thereto under Schedule 1.01 of the
Loan Agreement.



The undersigned hereby certifies that, since the Monthly Collateral Report dated                     ,                     ,
$                     relating to Collateral Dispositions of the assets reflected in such Monthly Collateral
Report [TO BE ADDED NOT LATER THAN THE ASSET TRANSFER DATE and $                     relating to Collections with
respect to the Primary Collateral reflected in such Monthly Collateral Report] have been received.




     The undersigned hereby further certifies that, as of the date hereof and since the date of the
Monthly Collateral Report described above, $                     has been reinvested in Reinvestment Assets in
accordance with the terms of the Loan Agreement.



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	*	 	Form to be amended from time to time by agreement of the parties.





Ex. 2.03(b)-1





 









 








EXHIBIT 2.04(a)




FORM OF COLLATERAL VALUE REPORT




[See attached]




Ex. 2.04(a)-1




 









 








GMAC ResCap

Secured Revolver

Collateral Value Report

Reporting Period Ending:

Report Date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	X-	 	 	 	Asset	 	 	 	 	 	Advance	 	 	 	 
	Ref	 	Primary Collateral Buckets	 	Count	 	UPB	 	Carry Value	 	Rate	 	 	Collateral Value	 
	Assets at MTM, Lower of Cost or Market
1 Conforming Loans — HFS	 	 	 	 	 	 	 	 	90	%	 	 	0	 
	1
	 	Jumbo Loans - HFS	 	 	 	 	 	 	 	 	80	%	 	 	0	 
	1
	 	Wet Loans - HFS	 	 	 	 	 	 	 	 	85	%	 	 	0	 
	1
	 	Second Lien or HELOC Loans HFS	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	HLTV Loans HFS	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	Scratch and Dent Loans HFS	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	3
	 	Residual Interest	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	3
	 	Financial Asset-Backed Securities	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	 	 	 	 	 
	 
	 	Subtotal:	 	0	 	0	 	0	 	 	 	 	 	 	0	 
	 	 	 	 	 
	Assets at Amortized Cost net of Allowance for Losses	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	Conforming Loans - HFI	 	 	 	 	 	 	 	 	90	%	 	 	0	 
	1
	 	Jumbo Loans - HFI	 	 	 	 	 	 	 	 	80	%	 	 	0	 
	1
	 	Wet Loans - HFI	 	 	 	 	 	 	 	 	85	%	 	 	0	 
	2
	 	Servicing P&I Advances	 	 	 	 	 	 	 	 	80	%	 	 	0	 
	2
	 	Servicing T&I and Corporate Advances	 	 	 	 	 	 	 	 	70	%	 	 	0	 
	2
	 	Other Receivables	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	4
	 	IBG Assets*	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	5
	 	BCG Assets	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	Second Lien Loans or HELOCs LoansHFI	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	Scratch and Dent Loans HFI	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	Kick-Out Loans	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	HLTV Loans HFI	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	1
	 	REO Property	 	 	 	 	 	 	 	 	50	%	 	 	0	 
	 	 	 	 	 
	 
	 	Subtotal:	 	0	 	0	 	0	 	 	 	 	 	 	0	 
	 	 	 	 	 
	 
	 	Total:	 	0	 	0	 	0	 	 	 	 	 	 	0	 
	 	 	 	 	 
	RFG
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	Mortgage Loans - HFS/HFI/REO	 	0	 	0	 	0	 	 		 	 	 	0	 
	2
	 	Accounts Receivable	 	n/a	 	n/a	 	0	 	 		 	 	 	0	 
	3
	 	Trading Securities	 	0	 	n/a	 	0	 	 		 	 	 	0	 
	 	 	 	 	 
	 
	 	RFG Subtotal:	 	0	 	0	 	0	 	 		 	 	 	0	 
	 	 	 	 	 
	4
	 	IBG*                (actual)	 	n/a	 	n/a	 	0	 	 		 	 	 	0	 
	 
	 	IBG                 (estimate)	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5
	 	BCG	 	n/a	 	n/a	 	0	 	 		 	 	 	0	 
	 	 	 	 	 
	 
	 	IBG & BCG Subtotal:	 	 	 	 	 	0	 	 	 	 	 	 	0	 
	 	 	 	 	 
	 
	 	Total:	 	0	 	0	 	0	 	 		 	 	 	0	 
	 	 	 	 	 







 




			
	*	 	one of the IBG lines is intentionally left blank





	 	 	 	 	 
	Other Required Reporting. Changes since	 	 
	Previous Collateral Value Report	 	$
	1 Cash received from Collateral Dispositions
	 	 	0	 
	2 $ reinvested in Reinvestment Collateral
	 	 	0	 
	[3 Beginning 9/15/08, Cash received from Collections]
	 	 	0	 






Collateral Value Report





 









 










EXHIBIT 2.04(b)




COLLATERAL VALUE CERTIFICATE




GMAC LLC,

     as Lender Agent

200 Renaissance Center

Detroit, Michigan 48265

Attention: David Walker, Group VP and Treasurer




Facsimile No.: (313) 656-5401




Re: Residential Funding Company, LLC, and GMAC Mortgage, LLC




Gentlemen and Ladies:




          This Collateral Value Certificate is delivered to you pursuant to [Section 2.04(a)]/
[Section 2.04(b)] of the Loan Agreement, dated as of June 4, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”), by and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC
(“GMAC Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the
“Initial Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party
thereto as Guarantors (each, a “Guarantor”), the Principal institutions and other Persons
that are or may from time to time become parties thereto as Lenders (together with the Initial
Lender and their respective successor and assigns, each a “Lender” and collectively, the
Lenders”) and GMAC LLC, as agent for the Lenders (in such capacity together with its
successors and assigns in such capacity, the “Lender Agent”). Unless otherwise defined
herein or the context otherwise requires, capitalized terms used herein have the meanings provided
in the Loan Agreement.



The Borrowers hereby certify a Collateral Value of $[•]



The Borrowers have caused this Collateral Value Certificate to be executed and delivered, and
the certification and warranties contained herein to be made, this [•] day [•], 2008.




	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. 2.04(b)-1





 









 








EXHIBIT 2.08(b)




FORM OF REPAYMENT NOTICE




[•], 200[•]



TO: The Lender Agent as defined in the Loan Agreement referred to below





     Reference is hereby made to the Loan Agreement, dated as of June 4, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”), by and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC
(“GMAC Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the
“Initial Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party
thereto as Guarantors (each, a “Guarantor”), the Principal institutions and other Persons
that are or may from time to time become parties thereto as Lenders (together with the Initial
Lender and their respective successor and assigns, each a “Lender” and collectively, the
Lenders”) and GMAC LLC, as agent for the Lenders (in such capacity together with its
successors and assigns in such capacity, the “Lender Agent”). Capitalized terms not
otherwise defined herein are used herein as defined in the Loan Agreement.



     The Borrowers hereby notify you that, pursuant to Section 2.08[(a)/(b)] of the Loan Agreement,
it shall make a repayment of the [Revolving/Term] Loans outstanding under the Loan Agreement to the
Lender on [•], 200[•] in the amount of $[•].



     Also included in the repayment amount shall be accrued and unpaid interest, Breakage Costs (as
determined by the Lender Agent and provided to the undersigned) and other amounts due and owing to
the Lenders in the amount of $[•].



Ex. 2.08(b)-1




 









 








     The undersigned has caused this Repayment Notice to be executed and delivered by its duly
authorized officer this [•] day of [•], 200[•].



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. 2.08(b)-2





 









 








EXHIBIT 2.09(a)




FORM OF PREPAYMENT NOTICE




[•], 200[•]




TO: The Lender Agent as defined in the Loan Agreement referred to below





     Reference is hereby made to the Loan Agreement, dated as of June 4, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”), by and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC
(“GMAC Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the
“Initial Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party
thereto as Guarantors (each, a “Guarantor”), the Principal institutions and other Persons
that are or may from time to time become parties thereto as Lenders (together with the Initial
Lender and their respective successor and assigns, each a “Lender” and collectively, the
Lenders”) and GMAC LLC, as agent for the Lenders (in such capacity together with its
successors and assigns in such capacity, the “Lender Agent”). Capitalized terms not
otherwise defined herein are used herein as defined in the Loan Agreement.



     The Borrowers hereby notify you that pursuant to and in compliance with Section 2.09 of the
Loan Agreement, it shall make a prepayment of [Revolving/Term] Loans outstanding under the Loan
Agreement on [•], 200[•] in the amount of $[•].



     Also included in the prepayment amount shall be accrued and unpaid interest, Breakage Costs
(as determined by the Lender Agent and provided to the undersigned) and other amounts due and owing
to the Lenders in the amount of $[•].



Ex. 2.09(a)-1




 









 








     The undersigned has caused this Prepayment Notice to be executed and delivered by its duly
authorized officer this [•]day of [•], 200[•].



	 	 	 	 	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Ex. 2.09(a)-2





 











 





EXHIBIT 7.01




FORM OF COMPLIANCE CERTIFICATE




GMAC LLC,


     as Lender Agent


200 Renaissance Center


Detroit, MI 48265




Re:
                     Reporting Date




     Reference is made to the Loan Agreement, dated as of June 4, 2008 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the “Loan Agreement”), by
and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC (“GMAC
Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the “Initial
Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party thereto as
Guarantors (each, a “Guarantor”), the Principal institutions and other Persons that are or
may from time to time become parties thereto as Lenders (together with the Initial Lender and their
respective successor and assigns, each a “Lender” and collectively, the Lenders”)
and GMAC LLC, as agent for the Lenders (in such capacity together with its successors and assigns
in such capacity, the “Lender Agent”). Terms defined in the Loan Agreement and not
otherwise defined herein are used herein as defined in the Loan Agreement.



     Pursuant to Section 7.01(f) of the Loan Agreement, ResCap is furnishing to you
herewith (or has most recently furnished to you) the financial statements of ResCap for the fiscal
period ended as of the reporting date shown above (the “Reporting Date”). Such financial
statements have been prepared in accordance with generally accepted accounting principles and
present fairly, in all material respects, the financial position of ResCap covered thereby at the
date thereof and the results of its operations for the period covered thereby, subject in the case
of interim statements only to normal year-end audit adjustments and the addition of footnotes.



     The undersigned Responsible Officer of ResCap has caused the provisions of the Loan Agreement
to be reviewed and certifies to the Lenders that: (a) as of the close of business on
[                    ], such date being the Business Day immediately preceding the [                    ]
Reporting Date, (x) the aggregate amount of Consolidated Liquidity is [___], and (y) the
aggregate amount of unrestricted and unencumbered Consolidated Liquidity is [___], (b) the
Consolidated Tangible Net Worth of ResCap as of the [                    ] Reporting Date is [                    ],
the undersigned has no knowledge of any Default or Event of Default, (c) attached hereto are the
computations necessary to determine that ResCap is in compliance with the provisions of the Loan
Agreement as of the Reporting Date referenced thereon, and (d) to the best of the undersigned’s
knowledge no event has occurred since the date of the
most recent financial statements upon which such covenant compliance was calculated that would
cause ResCap to no longer be in compliance with said provisions.



     The statements made herein (and in the Schedule attached hereto) shall be deemed to be
representations and warranties made in a document for the purposes of Section 6.01(j) of
the Loan Agreement.


Ex. 7.01-1



 









 





     IN WITNESS WHEREOF, the undersigned Responsible Officer of ResCap has set [his/her] hand this
[•], 200[•].



	 	 	 	 	 
	 	Residential Capital, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Ex. 7.01-2



 









 








EXHIBIT 7.01(s)




FORM OF JOINDER




[Date]




GMAC LLC


200 Renaissance Center


Detroit, MI 48265




Attention: David Walker, Group VP and Treasurer




Ladies and Gentlemen:





     Reference is made to the Loan Agreement, dated as of June 4, 2008 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the “Loan Agreement”), by
and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC (“GMAC
Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the “Initial
Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party thereto as
Guarantors (each, a “Guarantor”), the Principal institutions and other Persons that are or
may from time to time become parties thereto as Lenders (together with the Initial Lender and their
respective successor and assigns, each a “Lender” and collectively, the Lenders”)
and GMAC LLC, as agent for the Lenders (in such capacity together with its successors and assigns
in such capacity, the “Lender Agent”); and to the First Priority Pledge and Security
Agreement and Irrevocable Proxy, dated as of June 4, 2008 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the “Security Agreement”),
by and among the Lenders, Wells Fargo Bank, N.A., as First Priority Collateral Agent, the Borrowers
and the Guarantors. Terms defined in the Loan Agreement and not otherwise defined herein are used
herein as defined in the Loan Agreement in.



     The undersigned, [name of new Guarantor], a [jurisdiction of incorporation] corporation (the
“New Guarantor”), and the Borrowers hereby elect that the New Guarantor shall be a
Guarantor for purposes of the Loan Agreement and the Security Agreement, effective from the date
hereof [until a Consent to Terminate shall have been delivered by the Lender Agent in respect of
the New Guarantor in accordance with the Loan Agreement]. The Borrowers and the New Guarantor
confirm that the representations and warranties set forth in Article VI of the Credit Agreement and
Section 6 of the Security Agreement are true and correct in all material respects as to the New
Guarantor as of the date hereof as though such representations and warranties had been made on and
as of the date hereof unless stated to relate to a specific earlier date in which case such
representations and warranties specifically relating to an earlier date shall be true and correct
in all material respects as of such earlier date, and the New Guarantor agrees to perform all the
obligations of a Guarantor under, and to be bound in all respects by the terms of, the Loan
Agreement and the Security Agreement as if the New Guarantor were a signatory party thereto. The
New Guarantor acknowledges receipt of copies of the Loan Agreement and the Security Agreement.


Ex. 7.01(s)-1



 









 








     The New Guarantor acknowledges that all notices to it under the Loan Agreement or the Security
Agreement are to be given to it in care of the Borrowers as provided in the Loan Agreement. This
instrument shall be construed in accordance with and governed by the laws of the State of New York.



	 	 	 	 	 
	 	Very truly yours,



[NAME OF GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Residential Funding Company, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GMAC Mortgage, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Ex. 7.01(s)-2



 









 









     Receipt of the above Joinder is acknowledged on and as of the date set forth above.



	 	 	 	 	 
	 	GMAC LLC,

as Lender Agent,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Ex. 7.01(s)-3



 









 








EXHIBIT 9.01




FORM OF ASSIGNMENT AND ACCEPTANCE





     ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Assignment Agreement”) dated as of [___],
between [                                        ] (“Assignor”) and [                    ] (“Assignee”). All
capitalized terms used herein and not otherwise defined herein shall have the respective meanings
provided to such terms in the Schedule 1.01 to the Loan Agreement (as defined below).



     WHEREAS, Assignor is a party to a Loan Agreement, dated as of June 4, 2008 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”), by and among Residential Funding Company, LLC (“RFC”), GMAC Mortgage, LLC
(“GMAC Mortgage” and together with RFC, the “Borrowers”), GMAC LLC (the
“Initial Lender”), Residential Capital, LLC and the other Affiliates of the Borrowers party
thereto as Guarantors (each, a “Guarantor”), the Principal institutions and other Persons
that are or may from time to time become parties thereto as Lenders (together with the Initial
Lender and their respective successor and assigns, each a “Lender” and collectively, the
Lenders”) and GMAC LLC, as agent for the Lenders (in such capacity together with its
successors and assigns in such capacity, the “Lender Agent”);



     WHEREAS, the aggregate Commitments of the Lenders and the aggregate principal amount of
outstanding Loans pursuant to the Loan Agreement as at the date hereof are set forth in Item
6(a) of Annex I hereto; and



     WHEREAS, the Assignee proposes to assume all of the rights and obligations of the Assignor
under the Loan Agreement and the other Facility Documents in respect of the portion of the
Assignor’s Commitment and outstanding Loans under the Loan Agreement as set forth in Item
6(c) of Annex I (the “Assignee’s Share”);



     NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:



     1. Assignment. Effective on the Assignment Effective Date (as defined below),
Assignor hereby assigns to Assignee, without recourse and without representation or warranty
(other than as expressly provided herein), that Dollar amount listed in Item 6(c) of
Annex I hereto as the Assignee’s Share of all of the Assignor’s rights, title and
interest arising under the Loan Agreement and the other Facility Documents in respect of the
Assignor’s Commitment including, without limitation (but subject to Section 5) all
rights with respect to Assignee’s Share of such outstanding Loans.



     2. Assumption. Effective on the Assignment Effective Date, Assignee hereby
assumes from Assignor all of Assignor’s obligations arising under the Loan Agreement
relating to Assignee’s Share. Effective on the Assignment Effective Date, Assignor shall be
released from all of its obligations under the Loan Agreement relating to Assignee’s Share
pursuant to Article IX the terms of the Loan Agreement, but subject to Section
13.11 thereof.


Ex. 9.01-1



 









 








     3. Assignments; Participation. On and after the Assignment Effective Date, the
Assignee may assign all or any part of the rights granted to it as an Assignee hereunder in
accordance with the applicable provisions of Section 9.01 of the Loan Agreement. On
and after the Assignment Effective Date, the Assignee may sell or grant participations in
all or any part of the rights granted to it as an Assignee hereunder in accordance with the
applicable provisions of Section 9.04 of the Loan Agreement.



     4. Payment of Interest to Assignee.



     (a) Interest is payable by the Borrowers
in respect to the Assignee’s Share of the Loans at the applicable rates set forth in
Section 2.05 of the Loan Agreement. Notwithstanding anything to the contrary
contained above, all payments with respect to the Assignee’s Share made or accrued to, but
excluding, the Assignment Effective Date shall be for the account of the Assignor.



     (b) Notwithstanding anything to the contrary contained in this Assignment Agreement, if and
when the Assignor receives or collects any payment of interest on any Loan attributable to the
Assignee’s Share or any payment of commitment fee attributable to the Assignee’s Share which, in
any such case, is required to be paid to the Assignee as described in Section 4(a) above,
the Assignor shall distribute to the Assignee such payment but only to the extent such interest or
commitment fee accrued on or after the Assignment Effective Date.



     (c) Notwithstanding anything to the contrary contained in this Assignment Agreement, if and
when the Assignee receives or collects any payment of interest on any Loan attributable to the
Assignor’s Share which, in any such case, is required to be paid to the Assignor as described in
Section 4(a) above, the Assignee shall distribute to the Assignor such payment but only to
the extent such interest or commitment fee accrued prior to the Assignment Effective Date.



     5. Payments on Effective Date. In consideration of the assignment by the
Assignor to the Assignee of the Assignee’s Share the Assignee agrees to pay to the Assignor
on or prior to the Assignment Effective Date an amount specified by the Assignor in writing
on or prior to the Assignment Effective Date which represents the Assignee’s Share of the
principal amount, if any, of the Loans made by the Assignor pursuant to the Loan Agreement
and outstanding on the Assignment Effective Date.



     6. Effectiveness. The Assignment Agreement hereunder shall become effective on
the date (the “Assignment Effective Date”) on which (i) the Assignor and the
Assignee shall have signed a copy hereof (whether the same or different copies) and, in the
case of the Assignee, shall have delivered same to the Assignor, (ii) the Assignee shall
have paid to the Assignor the amount specified in writing by the Assignor in accordance with
Section 5 hereof, (iii) the Borrowers and the Lender shall have received a copy
hereof, (iv) the Lender Agent shall have received a processing and recordation fee in the
amount of $3,500 (unless such fee is waived or reduced by the Lender Agent in its sole
discretion), and (v) the Lender Agent shall have recorded the Assignment in accordance with
Section 9.01 of the Loan Agreement.


Ex. 9.01-2



 









 








     7. Issuance of New Promissory Notes on the Assignment Effective Date. In
accordance with the requirements of Section 9.02 of the Loan Agreement, within five
(5)
Business Days of the Assignment Effective Date, a new Note will be issued by the
Borrowers to the Assignor and/or the Assignee, as the case may be. On the Assignment
Effective Date, the Assignee shall be deemed a Lender for all purposes under the Loan
Agreement and the other Facility Documents, and shall be subject to and shall benefit from
all of the rights and obligations of a Lender under the Loan Agreement and the other
Facility Documents, and the address of the Assignee for notice purposes shall be as set
forth in Item 7 of Annex I hereto.



     8. Representations and Warranties.



     (a) Each of Assignor and Assignee
represents and warrants to the other parties as follows:




     (i) it has full power and authority, and has taken all actions necessary, to execute
and deliver this Assignment Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment Agreement,




     (ii) the making and performance by it of this Assignment Agreement and all documents
required to be executed and delivered by it hereunder do not and will not violate any law or
regulation of the jurisdiction of its incorporation or any other law or realization
applicable to it,




     (iii) this Assignment Agreement has been duly executed and delivered by it and
constitutes its legal, valid and binding, obligation, enforceable in accordance with its
terms; and




     (iv) all approvals, authorizations, or other actions by, or filings with, any
governmental authority or regulatory body or any other third party necessary for the
validity or enforceability of its obligations under this Assignment Agreement have been
obtained.



     (b) Assignor represents and warrants to Assignee that Assignee’s Share and the Loans
attributable to Assignee’s Share are subject to no liens or security interests created by Assignor.



     9. Expenses. Assignor and Assignee agree that each party shall bear its own
expenses in connection with the preparation and execution of this Assignment Agreement.



     10. Miscellaneous.



     (a) Neither the Lender Agent nor the Assignor shall be
responsible to the Assignee for the execution (by any party other than the Assignor or the
Lender Agent, as the case may be), effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of any of the Loan Agreement or the other Facility Documents
or for any representations, warranties, recitals or statements made therein or in any
written or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents made or furnished or made


Ex. 9.01-3



 









 







available by the Assignor to
the Assignee or by or on behalf of the Borrowers to the Assignor or the Assignee in
connection with the Loan Agreement or the other Facility Documents and the transactions
contemplated thereby. Neither the Lender Agent nor the Assignor shall be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan Agreement
or the other Facility Documents or as to the use of the proceeds of the Loans or as to the
existence or possible existence of any Event of Default.




     (b) The Assignee represents and warrants that it (i) has made its own independent
investigation, without reliance upon the Lender Agent, the Assignor or any other Purchaser
Liquidity Bank, of the financial condition and affairs of the Borrowers in connection with this
Assignment Agreement, the making of the Loans and the Assignment of the Assignee’s Share of the
Assignor’s Commitment and of the Loans to the Assignee hereunder and (ii) has made and shall
continue to make its own appraisal of the creditworthiness of the Borrowers. Neither the Lender
Agent nor the Assignor shall have any duty or responsibility either initially or on a continuing
basis to make any such investigation or any such appraisal on behalf of the Assignee or to provide
the Assignee with any credit or other information with respect thereto whether coming into its
possession before the making of any Loan or at any time or times thereafter and shall further have
no responsibility with respect to the accuracy of, or the completeness of, any information provided
to the Assignee, whether by the transferor or by or on behalf of any other person.



     (c) GOVERNING LAW. THIS ASSIGNMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).



     (d) WAIVER OF JURY TRIAL. THE PARTIES TO THIS ASSIGNMENT AGREEMENT KNOWINGLY,
VOLUNTARILY AND EXPRESSLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ENFORCING OR DEFENDING ANY RIGHTS ARISING OUT OF OR RELATING TO THIS ASSIGNMENT
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE PARTIES HERETO ACKNOWLEDGE THAT THE
PROVISIONS OF THIS SECTION 10(d) HAVE BEEN BARGAINED FOR AND THAT EACH SUCH PARTY HAS BEEN
REPRESENTED BY COUNSEL IN CONNECTION HEREWITH.



     (e) (i) Submission to Jurisdiction. With respect to any claim or action arising
hereunder, the parties (a) irrevocably submit to the nonexclusive jurisdiction of the courts of the
State of New York and the United States District Court located in the Borough of Manhattan in The
City of New York, New York, and appellate courts from any thereof, and (b) irrevocably waive any
objection which such party may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating to this Assignment Agreement brought in any such court, and
irrevocably waive any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.


Ex. 9.01-4



 









 








          [(ii) (A) The Assignor hereby irrevocably designates, appoints and empowers [___] with
offices at [___] and (B) the Assignee hereby irrevocably designates, appoints and empowers [___]
with offices at [___], as its respective designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and its properties, assets and revenues, service for any and all
legal process, summons, notices and documents which may be served in
any such action, suit or proceeding brought in the courts listed in Section 10(e)(i)
hereof which may be made on such designee, appointee and agent in accordance with legal procedures
prescribed for such courts.]




     (f) Amendments. This Assignment Agreement may be supplemented, modified or amended by
written instrument signed on behalf of both parties thereto.



     (g) Facsimile and Counterparts. This Assignment Agreement may be executed by
facsimile in any number of counterparts and by different parties thereto on separate counterparts,
each of which counterparts, when executed and delivered, shall be deemed an original and all of
which counterparts, taken together, shall constitute one and the same agreement.



     (h) Assignment. The Assignor may at any time or from time to time grant to others
assignments or participations in its Commitment or Loans but not in the portions thereof sold as an
assignment to the Assignee pursuant to this Assignment Agreement.



     (i) Payments. All payments hereunder or in connection herewith shall be made in
Dollars and in immediately available funds, if payable to the Assignor, to the account of the
Assignor at its offices as designated in Item 8 of Annex I hereto, and, if payable
to the Assignee, to the account of the Assignee, as designated in Item 8 of Annex I
hereto.



     (j) Binding Effect. This Assignment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. Neither of the parties
hereto may assign or transfer any of its rights or obligations under this Assignment Agreement
without the prior consent of the other party. The preceding sentence shall not limit the right of
the Assignee to assign all or part of the Assignee’s Share of the Assignor’s Commitment and
outstanding Loans, if assigned under this Assignment Agreement in the manner contemplated by the
Loan Agreement and Section 3 hereof.



     (k) Survival. All representations and warranties made herein and indemnities provided
for herein shall survive the consummation of the transactions contemplated hereby.



     (l) Severability. Any provision of this Assignment Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability, without invalidating the remaining provisions hereof or
affecting the validity or enforceability, of such provision in any other jurisdiction.



     (m) Headings. The headings contained in this Assignment Agreement are for convenience
of reference only and shall not affect the construction or interpretation of any provision of this
Assignment Agreement.



     (n) Successors. This Assignment Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.


Ex. 9.01-5



 









 








     (o) Cumulative Rights, No Waiver. The rights, powers and remedies of the each party
under this Assignment Agreement are cumulative and in addition to all rights, powers and remedies
provided under any and all agreements between the parties relating thereto, at law, in equity or
otherwise. Neither any delay nor any omission by the parties to exercise any right,
power or remedy shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise thereof or any exercise of any other right, power or
remedy.



     (p) No Payments. The Assignee hereby acknowledges and agrees that, at any time that
the Loans are outstanding and no Event of Default has occurred and is continuing, (i) the Borrowers
shall not make any payment to the Assignee, (ii) the Borrowers shall have no duty, liability or
obligation to make any such payment to the Assignee, (iii) no such payment shall be due from the
Borrowers and (iv) the Assignee shall not have any right to enforce any claim against the Borrowers
in respect of any payment, in each case (w) except for those costs to be reimbursed by the
Borrowers to the Lenders pursuant to Section 2.07(b) of the Loan Agreement; (w) unless and
to the extent that the Lender Agent has provided written notice to the Borrowers of a Borrowing
Base Deficiency pursuant to Section 2.08 of the Loan Agreement; (x) unless and to the
extent that the Borrowers have delivered a Prepayment Notice pursuant to Section 2.09 of
the Loan Agreement; or (z) the Loan Repayment Date has occurred.



     (q) Limited Recourse. No recourse under or with respect to any obligation, covenant
or agreement (including, without limitation, any obligation or agreement to pay fees or any other
amount) of the Borrowers contained in this Assignment Agreement or any other agreement, instrument
or document entered into by it pursuant hereto or in connection herewith shall be had against any
affiliate, stockholder, officer, member, manager, partner, employee or director of the Borrowers,
by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any
statute or otherwise; it being expressly agreed and understood that the agreements of the Borrowers
contained in this Assignment Agreement and all of the other agreements, instruments and documents
entered into by it pursuant hereto or in connection herewith are, in each case, solely the
obligations of the Borrowers, and that no personal liability whatsoever shall attach to or be
incurred by any stockholder, affiliate, officer, member, manager, partner, employee or director of
the Borrowers, or any of them, under or by reason of any of the obligations, covenants or
agreements of the Borrowers contained in this Assignment Agreement or in any other such instrument,
document or agreement, or which are implied therefrom, and that any and all personal liability of
the Borrowers and every such stockholder, affiliate, officer, employee, member, manager, partner or
director of the Borrowers for breaches by the Borrowers of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by statute or
constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for
the execution of this Assignment Agreement. Unpaid amounts hereunder shall not constitute a
“claim” for purposes of Section 101(5) of the U.S. Bankruptcy Code or similar law affecting
creditors’ rights. The provisions of this Section 10(q) shall survive the termination of
this Assignment Agreement.


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


Ex. 9.01-6



 









 








     IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement as of the date
first above written.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	as Assignor	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	as Assignee	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






We hereby consent to the foregoing

assignment and acknowledge receipt

of notice thereof.




	 	 	 	 	 
	GMAC LLC	 	 
	 

	 	as Lender Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





[Assignment
and Assumption Agreement Signature Page]


Ex. 9.01-7



 









 








ANNEX I

to

Assignment and Assumption Agreement




	 	 	 
	1.

	 	Borrowers: Residential Funding Company, LLC
	 
	 	 
	 

	 	                    GMAC Mortgage, LLC
	 
	 	 
	2.

	 	Date of Loan Agreement: June 4, 2008
	 
	 	 
	3.

	 	Assignor:
	 
	 	 
	4.

	 	Assignee:
	 
	 	 
	5.

	 	Date of Assignment and Assumption Agreement:
	 
	 	 
	6.
	 	 
	 
	 	 
	(a)

	 	Aggregate Amount for all Lenders: U.S.$
	 
	 	 
	(b)

	 	Assignee’s Assigned Percentage of Aggregate: U.S.$
	 
	 	 
	(c)

	 	Assignee’s Share: U.S.$
	 
	 	 
	(d)

	 	Assignor’s Retained
	 

	 	Percentage of Aggregate: U.S.$
	 
	 	 
	(e)

	 	Assignor’s Share: U.S.$
	 
	 	 
	7.

	 	Notice Instructions for Assignee:
	 
	 	 
	 

	 	Attention:
	 

	 	Address:
	 

	 	Telephone:
	 

	 	Fax:
	 

	 	Additional Contacts:
	 
	 	 
	8.

	 	Payment Instructions:
	 
	 	 
	(a)

	 	Assignor:
	 
	 	 
	 

	 	Administrative Contact:
	 

	 	Address:
	 

	 	Telephone:
	 

	 	Fax:
	 

	 	Payment Information:
	 
	 	 
	 

	 	Bank Name:
	 

	 	Account Name:
	 
	 	 




Ex. 9.01-8



 









 








	 	 	 
	 

	 	Account Number:
	 

	 	Reference:
	 
	 	 
	(b)

	 	Assignee:
	 
	 	 
	 

	 	Administrative Contact:
	 

	 	Address:
	 

	 	Telephone:
	 

	 	Fax:
	 

	 	Payment Information:
	 
	 	 
	 

	 	Bank Name:
	 

	 	Account Name:
	 

	 	Account Number:
	 

	 	Reference:
	 
	 	 
	Accepted and Agreed:






	 	 	 	 	 
	 

	 	as Assignee
	 	as Assignor






	 	 	 
	By:

	 	By:
	Name:

	 	Name:
	Title:

	 	Title: 





Ex. 9.01-9